IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140020382 


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, in effect, 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.  He states at the time of enlistment, he signed up for the ACF in the amount of $25,000 at $694.44 per month in return for a 3-year enlistment.  He adds he is now receiving half of the amount he contracted for due to the Department of Defense (DOD) failure to honor his contract.  He explains the difference in the Montgomery GI Bill (MGIB) and the ACF and maintains that there was nothing in his contract that states the $25,000 is the total for his educational benefits.  He argues that since he is retired and a full-time student, he is entitled to receive $694.44 ACF payments per month, in addition to his GI Bill payments of $1,717.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 May 1994.

2.  A DA Form 3286-66 (Statement of Understanding the United States Army Incentive Enlistment Program), Annex D, dated 19 May 1994, shows the applicant enlisted for the ACF for a period of 3 years in the amount of $25,000.  He signed the contract acknowledging that he "must remain enrolled in the GI Bill to retain this incentive."
3.  The applicant completed training and he was awarded military occupational specialty (MOS) 63S (Heavy-Wheel Vehicle Mechanic) that was later changed to 18E (Special Forces Communications Sergeant).  He served through multiple reenlistments and was honorably retired on 31 May 2014, after completing
20 years and 12 days of active service.  His rank/grade was listed as sergeant first class/E-7.

4.  In the processing of this case, on 10 December 2014, 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 governed by statute in chapter 30, Title 38, U.S. Code.  It is an incentive that includes the MGIB plus an additional stipend or "kicker" that when added together it equals the full ACF amount in the contract (in this case, $25,000).

    	(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."  
   
   c.  Thus, in actuality, the ACF is a combined MGIB and "kicker" amount and the current amount of $350 per month paid to the applicant is the maximum authorized under the program as it existed when the applicant enlisted.  
   
   d.  Due to Congressional interest, the National Defense Authorization Act (NDAA) Fiscal Year (FY) 2009, Section 549 gave the Army Board for Correction of Military Records (ABCMR) the authority to rectify cases involving the ACF.  However, that authority expired on 31 December 2009 and was not renewed.
   
5.  On 16 December 2014, the applicant wrote it is sad that it takes an act of Congress to get the money he contracted for.  He states he feels like he is being punished for serving longer than his initial contract required.  He reiterates that his incentive never stated that this educational amount was a combination of the MGIB and the ACF.  In fact, the only mention of the MGIB is that he must be enrolled in the program in order to receive the ACF.


6.  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.

7.  Section 549, Duncan Hunter NDAA for FY 2009, Public Law 110-417, authorizes the Secretary of the Army to consider through the ABCMR a request for the correction of military records relating to the amount of the ACF benefit to which a member or former member may be entitled under an Army Incentive Program contract.

8.  Public Law 110-417 provides that payment of the ACF benefit may be made without regard to any limits on the total combined amounts established for the ACF and the MGIB.  However, payments must be made solely from funds appropriated for military personnel programs for FY 2009 and no payment may be made after 31 December 31 2009.

9.  Army Regulation 15-185 (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 $25,000 ACF "kicker bonus" was carefully considered.

2.  The ACF is a combined MGIB and "kicker" amount.  As specified by the applicant, he is currently being paid $1,717.  It appears that payment is a combination of his MGIB as well as the ACF "kicker" amount of $350.

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 the 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 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)                                         AR20140020382





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ABCMR Record of Proceedings (cont)                                         AR20140020382



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