PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 December 2001
         DOCKET NUMBER: AR2001060267


         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
Ms. Joyce A.Wright		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Thomas E. O’Shaughnessy		Member
Mr. Ronald E. Blakely		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.

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2. The applicant requests, in effect, that his date of rank (DOR) and effective date for PFC/E-3 and SPC/E4 be adjusted.

3. The applicant states that he was promoted to PFC/E-3 in the US Army Reserve (USAR); however, his rank was erroneously taken away due to the
fact that he did not have proof of promotion before enlisting at the Military Entrance Processing Station (MEPS). He and his father were informed that
his rank would be returned upon proof of his promotion along with any back
pay and allowances that were due. As a result of continuous delays, his
promotions to PFC/E3 and SPC/E4 are now overdue. He also states that his demotion was inappropriate and upon advice of his father, he is appealing this action. In support of his application, he submits a copy of his DD Form 4/1 (Enlistment/Reenlistment Document), a copy of his DA Form 4187 (Personnel Action), a copy of his DD Form 1966/3 (Record of Military Processing-Armed Forces of the United States), a copy of an Advanced Eligibility Status Roster,
an assumption of command order, two DA Forms 2A (Personnel Qualification Record), and a copy of his Leave and Earning Statement (LES).

4. In a statement of support his father, a commissioned officer in the USAR, states that his son, the applicant, enlisted in the USAR with his full support and assistance on 3 March 1999. He administered the oath of enlistment to his son and was later deployed to Bosnia. His son was scheduled at that time to attend basic training (BT) in June of 1999, under the Split Option Program. Prior to shipment, he injured his finger and was unable to ship to BT as projected and was later cleared by the MEPS physicians. Upon arrival at the MEPS, the recruiters were unable to find a slot for his son to attend BT. At that time, his
son was given the option of being discharged from the USAR or remaining as an active drilling Reservist until shipment for BT the following summer. The son
decided to remain in the USAR and was subsequently promoted to PV2 on 15 October 1999, and to PFC on 8 April 2000, based on his time in service (TIS) and time in grade (TIMIG).

5. Prior to graduation from High School, his son expressed interest in the Regular Army (RA) and began discussions with his recruiters. He was informed that he would be able to retain his present rank of PFC upon enlistment in the RA. The applicant’s father was present for all conversations pertaining to his son’s career and was also informed by the MEPS personnel that proof of his promotion was needed at the time of entrance on active duty in the RA. In April 2000, he was subsequently transferred and was later informed that, since his
son had just been recently promoted to PFC/E-3, that all that was needed was to retrieve the document reflecting the son’s promotion. After some difficulty and delays, the documents were forwarded from his son’s previous commander. Personnel at MEPS informed him to forward the documents to Fort Sill and that they would make appropriate corrections and pay adjustments.

6. On 30 August 2000, his son entered active duty in the RA and began BT with the understanding that he would be promoted to PFC while in BT; however, this action did not take place. It has been well over a year with no resolution to this matter. His son feels betrayed and has appealed this action. He has reviewed the regulations regarding enlisted promotions and feels that his son has met the TIMIG and TIS requirements. In conclusion, he requests that the Board adjust his son’s DOR and effective date of PFC/E3 to 30 August 2000, with appropriate back pay, and promote him to SPC/E4.

7. The applicant’s military records show he initially enlisted in the USAR on 3 March 1999, in the pay grade of E-1 as a heavy wheel vehicle mechanic.

8. The applicant’s records contain a copy of a DA Form 4187 (Personnel Action), dated 15 October 1999, which shows that he was advanced to PV2/E2 with a
DOR and effective date of 15 October 1999. The promotion was due to accelerated advancement under the Army Referral Program.

9. The applicant’s records contain an Advancement Eligibility Status Roster, dated 26 March 2000, and signed by the applicant’s commander, which shows that the applicant was advanced to PFC/E-3 with a DOR and effective date of 8 April 2000.

10. He enlisted in the Regular Army on 30 August 2000, in the pay grade of PV2/E-2 for a period of 4 years as a cannon crewmember. He continues to serve and is presently assigned to Company C, 1/377th Field Artillery in Fort Campbell, Kentucky.

11. The applicant provided a copy of his DD Form 4/1 (Enlistment/Reenlist Document), dated 30 August 2000, which shows that he enlisted in the pay grade of E-2.

12. In the processing of the case, an advisory opinion was provided by the Office of the Deputy Chief of Staff for Personnel, Recruiting Policy Branch. The opinion stated that the supporting documentation shows that this case substantiates that the applicant was entitled to enter the Regular Army with the grade of rank as
E-3, in accordance with Army Regulation 601-210, chapter 3, paragraph
3-17a(2). This paragraph states that soldiers who have taken part in an initial active duty for training (IADT) program and have 12 months service after release
from IADT, the enlistment grade will be the grade currently held, up to the grade of E-4. The opinion further states that the applicant was promoted to PFC/E-3 on 8 April 2000, and entered the Regular Army on 30 August 2000. The applicant had circumstances beyond his control that kept him from attending basic training



while in the Reserve. He remained in the unit and provided referrals, which enabled him to be promoted to the rank of PFC. It goes on to say that normally, the DA Form 4187 (promotion order) is presented at the time of the initial contract. However, in this instance, the document was not made available when the contract was prepared, and all measures were exhausted to produce a copy of the promotion order at the time of the contract. The opinion recommended that the applicant’s grade and DOR be adjusted to the rank of PFC, pay grade
E-3, with an effective date of 30 August 2000. The opinion pointed out that the unit commander has the authority to submit appropriate personnel actions, citing Army Regulation 601-210, chapter 3 as the promotion authority.

13. The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of this case. The applicant responded within the timeframe allotted and concurred on 4 September 2001.

14. Army Regulation 601-210 sets forth the basic authority for the Regular Army and Army Reserve Enlistment Program. Paragraph 3-17 pertains to enlistment pay grade for applicants with prior military service who are enlisting into the Regular Army. Subparagraph 3-17a(2) states, in pertinent part, that soldiers who have taken part in an IADT program and have 12 months service after release from IADT, the enlistment grade will be the grade currently held up to the grade of PFC.

15. Army Regulation 600-8-19 governs the enlisted promotions and reductions function of the military personnel system. Chapter 2 governs the decentralized promotion system for advancement to specialist (SPC) and below. It states that the soldier must be in a promotable status on the effective date of advancement. The advancement authority or a higher headquarters may determine a soldier’s eligibility to be advanced with a retroactive DOR when the soldier’s advancement was delayed due administrative error. Commanders may advance soldiers with a waiver provided they have promotion capability within the percentage waiver restriction. For advancement to SPC (E-4), there is a 26-month TIS (12 months may be waived) and a 6-month TIMIG (3 months TIMIG may be waived) requirement. The regulation requires that a DA Form 4187 (Personnel Action) must be submitted by the unit commander on each soldier who is eligible for advancement to specialist (SPC).

CONCLUSIONS:

1. The evidence of record shows that the applicant enlisted in the USAR and was advanced to PFC with a DOR and effective date of 8 April 2000. Evidence also shows that he entered active duty in the pay grade of PV2 on 30 August 2000.


2. The evidence of record shows that the applicant was fully qualified to enlist
in the RA in the pay grade of E-3 on 30 August 2000, in accordance with Army Regulation 601-210, chapter 3, paragraph 3-17a(2). Therefore, the applicant’s DD Form 4/1 should be corrected to show that he enlisted in the RA in the pay grade of E-3 with a DOR and effective date of 30 August 2000, and that he is entitled to all back pay and allowances from 30 August 2000 to present.

3. The Board notes that for advancement to SPC/E4, there is a 26-month TIS (12 months TIS may be waived) and a 6 months TIMIG (3-month TIMIG may be waived) requirement. The applicant has met the TIMIG requirement; however, he has not met the TIS requirement. The Board also notes that for promotion to SPC, the applicant must be in a promotable status on the effective date of advancement and that the advancement authority or higher headquarters may determine a soldier’s eligibility to be advanced with a retroactive DOR when the soldier’s advancement was delayed due to an error. The Board further notes that commanders may advance soldiers with a waiver provided they have promotion capability within the percentage waiver restriction.

4. There is no evidence in the available records, and the applicant has provided no evidence, to show that he was advanced to SPC. Therefore, the applicant’s advancement authority or higher headquarters will determine the applicant’s eligibility for advancement to SPC based on his DOR and effective date of promotion for PFC.

5. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case for the individual concerned be corrected:

a. by amending his DD Form 4/1 to show that he enlisted in the pay grade of E-3; and

b. by showing that he was entitled to and paying him all back pay and allowances from 30 August 2000 to present.








2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__kk___ __to___ ___rb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Karol A. Kennedy_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060267
SUFFIX
RECON
DATE BOARDED	20011211
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT/DENY
REVIEW AUTHORITY
ISSUES 1. 21
2.
3.
4.
5.
6.