MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 October 2001
         DOCKET NUMBER: AR2001056730

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

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Barbara J. Ellis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: That he be reinstated to the pay grade of E-7, effective 1 January 2000, with entitlement to all back pay and allowances and placement on the Retired List in that pay grade.

APPLICANT STATES: In effect, that his promotion to the pay grade of E-7 was unjustly revoked and that the procedures used to revoke his promotion were not in accordance with applicable regulatory guidelines. In support of his application he submits copies of an Inspector General (IG) inquiry, a copy of his Declination of Continued Service Statement (DCSS)(DA Form 4991-R) and documents related to his promotion and subsequent revocation.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted on 19 February 1985 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 December 1995.

On 17 December 1998, while the applicant was serving as a field recruiter in the WACO, Texas Recruiting Company of the Dallas, Texas Recruiting Battalion, orders were published announcing the applicant’s promotion to the pay grade of E-7, effective 1 January 1999. The orders specified that soldiers who are promoted automatically incur a 2-year service obligation prior to non-disability retirement.

On 30 December 1999, the applicant was counseled by an E-7 (personnel staff noncommissioned officer), a command sergeant major and the acting commander of the Dallas Recruiting Battalion, that he had a requirement to meet the service remaining requirement of 24 months, due to his acceptance of his promotion to the pay grade of E-7. The applicant refused to take action to extend or reenlist to meet the service remaining requirement or to acknowledge that he had been counseled on the requirement. He indicated that he had no intentions of reenlisting. Accordingly, the counseling officials initiated a DA Form 4991-R on the applicant, which constituted a bar to reenlistment.

On 20 January 2000, the Total Army Personnel Command (PERSCOM) initiated action to remove the applicant from the promotion standing list and revoked his promotion orders.

On 2 February 2000, the applicant was issued a profile for a herniated disc in his back and medical evaluation board proceedings (MEB) were initiated.

The applicant’s battalion commander initiated action on 1 March 2000 requesting that the applicant’s rank be restored because the applicant was undergoing MEB proceedings and was ineligible for reenlistment through no fault of his own.

On 17 March 2000, the PERSCOM disapproved the commander’s request for reinstatement of the applicant’s promotion stating that the applicant was required to reenlist for an indefinite period if he had over 10 years and did not have sufficient service to meet the service remaining requirements. After his promotion and prior to initiation of a profile and MEB proceedings, the applicant had refused to do so. The PERSCOM also contended that the officials who counseled the applicant on his responsibility to do so, was adequate under the circumstances.

The applicant then initiated an IG inquiry into the matter and the Recruiting Command IG determined that his allegation that the DA Form 4991-R was improperly imposed by the reenlistment NCO was substantiated. However, the case was forwarded to the PERSCOM IG who conducted a thorough review of the case and determined that the actions taken were in accordance with Army policies and practices.

The facts and circumstances surrounding the applicant’s medical board processing are not present in the available records; however, his records do show that on 19 May 2000, the applicant was notified that a Physical Evaluation Board had found that his unfitting condition warranted a rating of less than 30% which would result in separation from the service with severance pay.

Although not fully explained in the available records, they show that on 31 August 2000, he was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 12 and the Voluntary Early Retirement Program. He had served 15 years, 6 months and 12 days of total active service and was placed on the Retired List in the pay grade of E-6, effective 1 September 2000.

Deputy Chief of Staff for Personnel (DCSPER) message number 98-19 dated 13 August 1998, announced the change to Army Regulation 601-280 that went into effect on 1 October 1998. It provided that Regular Army career soldiers in the rank of staff sergeant or higher with more than 10 years of active service will be required to reenlist for an unspecified term of service upon reenlistment.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board agrees with the findings of the PERSCOM IG that the DCSS had been properly initiated and that he had been properly removed from the promotion list.

3. The Board also has no doubt that the applicant was aware of his obligation to serve 2 years in grade before he would be eligible for non-disability retirement in that grade. While he could have served until his expiration of term of service (ETS) and would have been discharged in that grade, he would not have been eligible to retire in that grade unless an exception to policy was granted. Accordingly, he was properly retired in the pay grade of E-6 under the Voluntary Early Retirement Program, after serving over 15 years of active service.

4. The Board has noted the applicant’s contentions that he was not properly counseled by the appropriate personnel and finds them to be without merit. The applicant received the counseling that was required and the Board finds that the intent of the applicable regulatory guidance was met by the personnel who conducted the counseling. Furthermore, the Board finds that given the applicant’s career field at the time, it is reasonable to presume that he should have been aware of the provisions of the applicable regulations even if he had not been counseled.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___fe ___ ___mm__ ___be___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056730
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/18
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 312	131.0200/rem fr rec list
2.
3.
4.
5.
6.