IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20130015363 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show entitlement to the full amount of the Army College Fund (ACF) "kicker bonus" that he contracted for upon enlistment in the U.S. Army.

2.  The applicant states he contracted for the ACF in the amount of $50,000.  He has been receiving $588.89 per month while attending college full-time.  At this rate, it would take over 84 months of full-time attendance to fully compensate him for the contracted amount.  He adds that he accepted the ACF bonus in lieu of a larger cash bonus and requests the matter be appropriately dealt with.

3.  The applicant provides copies of his enlistment documents and information on the "kicker bonus."

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) on 6 November 2001 for a period of 8 years and he further enlisted in the Regular Army (RA) on 30 July 2002 for a period of 4 years.

3.  A DD Form 1966-Series (Record of Military Processing - Armed Forces of the United States) was prepared by the Army recruiter on the occasion of processing the applicant for his entrance into the USAR on 6 November 2001.

	a.  Item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees), section a, in pertinent part, shows he enlisted for "Army Cash Bonus (ACB) $4,000 and ACF $50,000."

   b.  The applicant and Army recruiter both signed the document.

4.  A DA Form 3286-59 (Statement for Enlistment U.S. Army Enlistment Program, U.S. Army Delayed Enlistment Program), Annex A, dated 6 November 2001, and DA Form 3286-66 (Statement of Understanding, U.S. Army Incentive Enlistment Program), Annex D, dated 30 July 2002, show the applicant enlisted for, in pertinent part, an ACB in the amount of $4,000 and the ACF in the amount of $50,000.  The documents also show the applicant and Army recruiter signed the documents.

5.  The applicant completed training and he was awarded military occupational specialty 11B (Infantryman).  He reenlisted in the RA on 8 June 2005 for a period of 4 years and he was promoted to sergeant on 1 October 2005.  He served in Iraq from:

* 21 March 2003 to 5 June 2003
* 12 January 2004 to 12 January 2005
* 10 December 2007 to 23 February 2009

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 10 June 2009 based on completion of required active service and transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  He had completed
6 years, 10 months, and 11 days of total active service.

7.  U.S. Army Human Resources Command, Orders D-11-921825, dated 
10 November 2009, honorably discharged the applicant from the USAR effective 10 November 2009.
8.  In support of his application the applicant provides extracts from three Department of Veterans Affairs (VA) documents that show the Department of Defense (DoD) notified the VA that the applicant is "entitled to a $588.89 per month 'kicker'."  Montgomery GI Bill (MGIB) and Montgomery GI Bill - Selected Reserve (MGIB-SR) 'kickers' payable under the Post-9/11 GI Bill [emphasis added] are paid in a lump sum for the entire quarter, semester, or term.  This amount is prorated based upon your rate of pursuit."

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington, DC.

a. The advisory official recommends the applicant's request be denied.

   b.  The advisory official states the ACF is an incentive that includes the MGIB plus an additional stipend or "kicker" that when added together is equal to the full ACF amount in the contract (in this case, $50,000).

    	(1)  For contracts written prior to 1 October 2004, in instances where Congress raised the basic GI Bill stipend, the impact of the ACF suffered since the MGIB plus "kicker" amount was still capped at the level listed in the contract, and the MGIB amount alone eventually exceeded the ACF amount.

    	(2)  Contracts issued prior to 1 October 2004 were subject to a DoD imposed cap which, in  most cases, negated further "kickers."  Soldiers who are eligible for the Post 9-11 GI Bill will receive the more advantageous of the MGIB or Post-9/11 Bill with the "kicker" added on to any monthly payment.

   c.  Thus, in actuality, the ACF is a combined MGIB and "kicker" amount.  The "kicker" is added to the base GI Bill entitlement.  Since the applicant is being paid under the Post-9/11 GI Bill, the "kicker" is added as a monthly amount over and above the tuition and living allowance.  The $50,000 amount the applicant seeks is, in fact, part of the overall GI Bill benefit and, as such, cannot be paid separately.

10.  The applicant was provided a copy of the advisory opinion in order to have the opportunity to comment; however, a response was not received.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), Table 9-4, of the version in effect at the time of the applicant's enlistment, explains the ACF.  It states applicants for enlistment will be advised of the following:  The ACF provides additional educational assistance in addition to that earned under the GI Bill.  The money earned is deposited in the Soldier's VA account.  Normally, the funds will be disbursed to the participant in equal monthly installments while the person is enrolled in an approved program of education.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding payment of the full amount of the $50,000 ACF "kicker bonus" was carefully considered.

2.  The ACF is a combined MGIB and "kicker" amount.  The evidence of record also shows the applicant is being paid under the Post-9/11 GI Bill with the ACF "kicker."

3.  It is acknowledged that nowhere in his contract does it state the ACF amount includes the MGIB.  However, the governing Army regulation in effect at the time of the applicant's enlistment explains the ACF and states applicants for enlistment will be advised the ACF provides additional educational assistance in addition to that earned under the MGIB.  In the absence of evidence to the contrary (such as sworn statements or affidavits from his recruiting officials), administrative regularity is presumed regarding the regulatory requirement for applicants for enlistment to be properly advised of the ACF.

4.  Therefore, based on the all of the foregoing, there is insufficient evidence which would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ____________x_____________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130015363



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ABCMR Record of Proceedings (cont)                                         AR20130015363



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