PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            18 July 2002                  
	DOCKET NUMBER:   AR2002066586

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the amount of his Army College Fund (ACF) be increased from $40,000 to $50,000.

3.  The applicant states that he had been promised the $40,000 ACF when he enlisted in the Army Reserve Delayed Entry Program (DEP).  However, he was later told by his recruiter that the ACF had been increased to $50,000, and he would automatically receive the higher amount.  His recruiter even told his school he would be receiving the $50,000 ACF.  Based on that information, he enlisted in the Regular Army for 4 years, only to discover that his recruiter was misinformed, that he needed to renegotiate his DEP contract to receive the higher ACF amount.

4.  In support of his request the applicant submits a response to a Congressional inquiry by the Army Recruiting Command (USARC).  In that response it is stated that the applicant’s concerns are valid and that the applicant’s DEP contract should have been amended to change his ACF amount from $40,000 to $50,000.

5.  The applicant’s military records show that he enlisted in the DEP on 23 June 1998.  He completed the addendum for a $40,000 ACF at that time.  On 2 June 1999, he enlisted in the Regular Army for 4 years.  At the time he submitted his application to the Board he was serving on active duty in pay grade E-4.

6.  The ACF is an incentive program, which was available to Regular Army enlistees who participated in the MGIB.  In addition to the monthly monetary educational benefits given to soldiers who participated in the Montgomery GI Bill (MGIB), the Army also provided a “kicker” in the form of the ACF, which was a set amount of money, which was determined by the length of an enlistment.  Entitlement to the ACF is contingent on the military occupational specialty (MOS) chosen by the potential enlistee.

7.  The MGIB, as outlined in title 38, United States Code, chapter 30, section 1411(b), provides for soldiers who entered the service after 30 June 1985, to be automatically enrolled into the MGIB and to contribute $1,200.00 during their first 12 months service, which is non-refundable.  After completion of their service obligation, he or she is entitled to receive up to $300.00 per month educational benefits for 36 months.

8.  In the processing of this case an advisory opinion was obtained from the US Total Army Personnel Command (PERSCOM).  The PERSCOM stated that the USAREC’s response to the applicant’s member of Congress was incorrect, that while the maximum amount of the ACF increased to $50,000 prior to his enlistment in the Regular Army, his MOS was not one which qualified for the higher ACF amount.  The PERSCOM recommends disapproval of the applicant’s request.

9.  The applicant was furnished a copy of the PERSCOM advisory opinion and given the opportunity to respond.  The applicant’s father responded for him, stating that, essentially, matters of mitigation were not addressed by the PERSCOM in its advisory opinion.  These matters of mitigation include the fact that the sole reason for his son’s decision to enlist in the Army versus another Armed Force was the amount of the ACF being offered.  Money for college was a primary concern for his son.  If his son had known that he had to change his MOS to qualify for the higher ACF amount, he would have done so.  Unfortunately, the applicant’s recruiter simply assumed that the high-skill MOS chosen by his son would qualify for the higher ACF amount, so he didn’t bother checking to insure that was the case.  Because of the recruiter’s error, the option to choose another MOS, one which would qualify for the higher ACF amount, was taken from his son.  The applicant’s father also details how his son’s recruiter told his school about the amount of money he was going to receive for his enlistment, and submits a copy of the documents his recruiter sent to his school and a copy of a representative check which shows the total amount of money the applicant would receive in educational benefits.  The applicant was presented that representative check by the recruiter at a school function.  All of these documents show that the applicant would receive the $50,000 ACF.

10.  The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.

CONCLUSIONS:

1.  The applicant was satisfied with the $40,000 ACF when he enlisted in the DEP, his MOS did not qualify for the higher ACF amount, and the Army is not bound by the erroneous information given to the applicant by his recruiter.  As such, he is not entitled by law or regulation to the higher ACF amount.

2.  However, the applicant’s father has raised a matter of equity, which the Board cannot ignore.  That matter of equity is the inability of his son to renegotiate his DEP contract to an MOS that qualified for the higher ACF amount because of the failure of the applicant’s recruiter to realize that his MOS would not qualify for the higher ACF amount.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the MOS of the individual concerned qualified for the $50,000 ACF, in this case only, as an exception to policy.

BOARD VOTE:  

___sk___  ___rvo __  ____jpi __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________Raymond V. O'Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2002066586	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020718	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.05	
2.		
3.		
4.		
5.		
6.