IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140010783 


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 when he initially enlisted in the U.S. Army he contracted for the ACF in the amount of $33,000.00.  His enlistment contract did not specify how the Montgomery GI Bill (MGIB) would be deducted from the ACF and that it would be paid out over 36 months.  In fact, the recruiters told him that once he fulfilled his 3-year obligation and started college, he would receive a lump sum payment in the amount of $33,000.00.

   a.  He continued to serve in the Army until October 2013 when he was medically retired due to injuries he sustained while deployed to Afghanistan.

   b.  When he enrolled in college he learned that he had been misled when he initially enlisted.  He also learned this deficiency was identified and corrected in October 2009; however, service members who were affected were not properly notified.

   c.  He states he believes that either his enlistment contract was not properly constructed or he was intentionally misled to secure his service in the military.  In addition, the recruiters were grossly misinformed, improperly trained, or intentionally misleading.  Furthermore, the Army had an obligation to contact him in October 2009 when corrections to the problem were being made so that he could have resolved the issue.
3.  The applicant provides copies of his enlistment documents.

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 10 June 2002 for a period of 8 years and he further enlisted in the Regular Army (RA) on 3 June 2003 for a period of 3 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 10 June 2002.

	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 the ACF in the amount of $33,000.00.

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

4.  U.S. Army Recruiting Command (USAREC) Form 1150 (USAREC Addendum to DD Form 1966 Series), dated 10 June 2002, and DA Form 3286-66 (Statement of Understanding, U.S. Army Incentive Enlistment Program), Annex D, dated 3 June 2003, show the applicant enlisted for, in pertinent part, the ACF in the amount of $33,000.00.

   a.  The DA Form 3286-66 also shows:

* "I understand that I am only entitled to the incentive as listed in 1a above and I have not been given any other guarantees or verbal promises in connection with my enlistment, other than my primary option."
* "The incentive in 1a above is ACF, I will be awarded the amounts indicated below [$33,000.00], as they apply to the term I am enlisting. (I must remain enrolled in the GI Bill to retain this incentive.)"

   b.   The applicant and Army recruiter signed the documents.

   c.  A DD Form 2366 (MGIB Act of 1984), dated 6 June 2003, shows the applicant acknowledged his enrollment in the MGIB.

5.  The applicant completed training and he was awarded military occupational specialty 92Y (Unit Supply Specialist).  He reenlisted in the RA on 9 December 2005 for a period of 3 years and again on 1 November 2007 for a period of 
6 years.  He was promoted to sergeant (E-5) on 1 January 2007.  He served in Afghanistan from 29 December 2010 to 7 January 2012.

6.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Knox, KY, Orders 198-0163, dated 17 July 2013, released the applicant from duty on 1 October 2013 and placed him on the Temporary Disability Retired List effective 2 October 2013.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 1 October 2013 based on temporary disability (enhanced).  He had completed 10 years, 3 months, and 29 days of total active service.

8.  In support of his application the applicant provides copies of his enlistment documents, which were summarized previously in this Record of Proceedings.  There is no indication that the MGIB would be deducted from the ACF or that it would be paid out over 36 months.

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 equals the full ACF amount in the contract (in this case, $33,000.00).

    	(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 Department of Defense imposed cap which, in most cases, negated further "kickers."  Due to Congressional interest, the Fiscal Year 2009 (FY09) National Defense Authorization Act (NDAA), section 549, gave the ABCMR the authority to rectify cases involving the ACF.  The authority expired on 31 December 2009 and was not renewed.  The Army Review Boards Agency (ARBA) website and Army Education Assistance Centers notified the field of this compensation adjustment.

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.  The ARBA website (http://arba.army.pentagon.mil) provided notice of the ACF Compensation Adjustment for Soldiers who enlisted for the first term of service between 1 April 1993 and 30 September 2004 with MGIB and ACF kicker initial enlistment incentives.  It advised Soldiers to contact their servicing Army Education Assistance Center and offered information on application procedures that were to be submitted not later than 1 October 2009 for payment by the Defense Finance and Accounting Service not later than 31 December 2009.

13.  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 $33,000.00 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 MGIB (Post-9/11 GI Bill) with the ACF "kicker"; however, the amount is capped at the level listed in the contract.

2.  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 that applicants for enlistment will be advised the ACF provides additional educational assistance in addition to that earned under the MGIB.

   a.  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.

 	b.  In addition, the evidence of record shows that following the enactment of the FY09 NDAA, the Army provided notice of the ACF Compensation Adjustment for Soldiers who enlisted for the first term of service between 1 April 1993 and 
30 September 2004 with MGIB and ACF kicker initial enlistment incentives.  However, there is no evidence of record that shows the applicant took any action prior to the 31 December 2009 deadline.

3.  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)                                         AR20140010783



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ABCMR Record of Proceedings (cont)                                         AR20140010783



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