MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 10 DECEMBER 2002
         DOCKET NUMBER: AR2002075716

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Conrad V. Meyer		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: In effect, the applicant requests that his records be corrected to show that he enlisted in the Regular Army on 26 June 2001 in pay grade E-5. He also requests that his records be corrected to show his correct basic active service date (BASD) and military occupational specialty (MOS).

APPLICANT STATES: That his reenlistment contract is incorrect because of the erroneous grade, BASD, and MOS.

The applicant states that he did not receive a correction to his 1 October 1991 DD Form 214 as reflected in a 12 October 1994 decision by this Board. He states that he did not sign the DA Form 4941-R and the DA Form 4991-R (Declination of Continued Service Statement)

He states that the acting commander signed, but was not authorized to approve his separation. He should have been discharged 90 days after he received pre separation counseling as required by law. His rights were not explained to him. The applicant cites excerpts from Army Regulation 635-200 concerning separation of soldiers who returned to the United States, and concerning pre separation counseling for soldiers who request voluntary discharge after choosing not to appeal [bar to reenlistment?]. He states that he was not counseled, questions the whereabouts of the counseling statement, the DA Forms 4941-R and 4991-R, and the documents that support his DD Form 214.       

He states that the flag was removed and the bar to reenlistment lifted. He was on orders to go the Sinai; however, his packet came after he left.

He states that he is a soldier who has never left the service, that he was promoted to sergeant, and occupied positions performing various duties, such as driver and communications sergeant. He is now the driver for the battalion and garrison command sergeants major.

COUNSEL CONTENDS: That the applicant be promoted to sergeant, pay grade E-5, effective and with the date of rank of 26 June 2001. The applicant enlisted in the Regular Army for three years on that date in the pay grade of E-4; however, at the time of his enlistment he was a member of the Reserve Component with more than 6 years of active federal service.

Army Regulation 601-210, paragraph 3-17b(3) states that an applicant who was last separated from any component or is a current member of a Reserve Component in grade E-5 with not more than 12 years of active federal service will have the enlistment grade determined by the Total Army Personnel Command (PERSCOM). The applicant was a sergeant in his prior Reserve Component unit and had served over six years in the active federal service when in reenlisted in 2001. He completed the primary leadership development course (PLDC) and served in various assignments to include the Persian Gulf in 1991. Considering his experience and years of service, it is not equitable to require the applicant to appear before a board for promotion consideration to the grade of sergeant. He should have been enlisted in pay grade E-5 in 2001.

The circumstances concerning the applicant’s separation from the service in 1991 are questionable. The applicant states that he did not execute a declination of continued service. There is no declination statement in his records. The Board has already determined that the narrative reason for the applicant’s separation was incorrect; however, the applicant has yet to receive a correction to his DD Form 214.

Because the applicant has the experience, training, and time in service to qualify for the rank of sergeant, and because of the questionable circumstances under whiich he was discharged in 1991, his records should be corrected to show that he reenlisted in the rank of sergeant on 26 June 2001.

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

Included with his application and incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's consideration of his request to correct his military records to show eligibility for payment of separation pay and to show the appropriate narrative reason for his discharge (AC94-07740) on 12 October 1994.

The applicant enlisted in the Army National Guard for 8 years in the grade of E-1 on 15 July 1985. His enlistment contract indicates that he had no prior military service.

The applicant enlisted in the Army for five years in the grade of E-4 on 28 February 1989. His enlistment contract shows that at the time of this enlistment he had 3 years and 8 days of active military service, and 7 months and 5 days of inactive military service.

Orders published by Headquarters, Fort Devens on 23 September 1991 show that the applicant was assigned to the transition point for transition processing with a reporting date and date of release from active duty of 1 October 1991. His rank is shown as SPC (Specialist E-4).

National Guard Bureau Form 22 (Report of Separation and Record of Service) shows that the applicant was discharged from the Army National Guard of Missouri in pay grade E-4 on 16 April 1994. He was discharged because of his unsatisfactory participation [in unit drills] and received a general discharge. That form shows that he was transferred to the Army Reserve Control Group (Annual Training) at St. Louis. It also shows that he had 1 year, 11 months, and 5 days of service during the period covered by that form, that he had 1 year and 27 days of prior Reserve Component service, and 5 years, 1 months, and 17 days of prior active federal service. His MOS on that form is shown as 71L, administrative specialist.

An order published by the 89^th Regional Support Command on 16 June 2000 shows that the applicant was conditionally promoted to the rank of sergeant and awarded MOS 88M20 effective and with a date of rank of 16 June 2000. That order also awarded him the secondary MOS of 71L20. The promotion was conditional in that the applicant had to complete the NCO Education System (NCOES) course required for the grade to which promoted.

An order published by the 89^th Regional Support Command on 14 May 2001 shows that the applicant, then a sergeant, was discharged from the Army Reserve.

The applicant enlisted in the Army for three years in the grade of E-4 on 26 June 2001. His enlistment contract shows that he enlisted in pay grade E-4 in accordance with the provisions of Army Regulation 601-210, paragraph 3-17, that a waiver was approved because of his reentry code, and that he enlisted for duty in MOS 88M10, motor transportation. The applicant signed the enlistment contract.

A 27 June 2001 computer printout showing the applicant’s personal data indicates that his BASD is 14 November 1995, and that his MOS is 88M00. Another computer printout also shows his MOS as 88M and that he enlisted for MOS 88M10.

The enlisted distribution and assignment system (EDAS) shows that the applicant’s BASD is 14 November 1995.

On 30 April 2002 the applicant signed a statement indicating that he did not receive proper counseling as required by law prior to his ETS (expiration of term of service) date of 12 February 1994. He stated that he was not informed about his right to appeal, nor his right to talk to a Judge Advocate General Corps officer. He stated that he did not sign the DA Form 4991-R.

Included with his application is a copy of a 10 January 2002 operational change to Army Regulation 601-210. That change states in pertinent part that an applicant separated from the Regular Army in grade E-5 with not more than 12 years total active service and who enlists within 24 months following separation, or who is a current member of a Reserve Component (after Regular Army service), will be enlisted in the grade of sergeant provided he has completed the appropriate Regular Army NCOES leadership requirements or its equivalent and provided a valid vacancy exists for PMOS in grade E-5. If no vacancy exists in the former PMOS, enlistment grade will be sergeant provided the applicant accepts retraining in a MOS provided by PERSCOM. PERSCOM will determine enlistment grade and eligibility for an applicant who was last separated from any component or is a current member of a Reserve Component in grade E-5 with not more than 12 years of active federal service.

Also included with his application is a copy of Army Regulation 601-210, including paragraph 3-17, dated 28 February 1995, which provided the same criteria as above for enlistment pay grade, except that not more than 10 years of total active service active was a determining factor.

In the processing of this case an advisory opinion was obtained from the Total Army Personnel Command. That command stated that the regulation did authorize applicants with prior service to retain their current grade if enlisting within 24 months following separation, or if a current member of a Reserve Component, and if a vacancy did exist. Because no vacancy existed in either MOS 88M or 71L, and because there is no evidence that he graduated from PLDC, he was enlisted in the correct grade of E-4. PERSCOM recommended that the applicant’s request not be granted.

On 26 September 2002 the applicant submitted a 10 page rebuttal to the PERSCOM advisory opinion, including with that rebuttal a blank copy of DA Form 4991-R, a blank copy of DA Form 5691-R (Request for Reserve Component Assignment Orders), a blank copy of DA Form 7249-R (Certificate and Acknowledgement of Service Requirements), a copy of pages from a 31 March 1999 regulation, in which he highlights paragraphs concerning service remaining requirements, declination of continued service statement (DCCS), and the execution and processing, and the disposition of the DCCS. He also includes a copy of a 19 September 1990 flagging action, copy of pages from Army Regulation 601-210, in which he highlights a paragraph concerning determination of USAR enlistment/assignment eligibility, a paragraph concerning eligibility for the Army Civilian Acquired Skill Program (ACASP), and a paragraph concerning authorized enlistment pay grades. The applicant also provides some of the same documents referenced above.

In his rebuttal, the applicant discusses his service while on active duty, the authority to approve a bar to reenlistment, his contention that had he a bar to reenlistment his reentry code on his DD Form 214 should have been RE 4, and his contention that he never signed the bar to reenlistment. He stated that he still had over 2 years left on his enlistment contract. He talked about service remaining requirements and the DCSS. He stated that the Enlisted Records Evaluation Center never received a copy of various forms. He continues by saying that he was informed that he could be reclassified as a 92G20, but was not so informed when he returned to active duty. He states that the Army Regulation 611-201 was obsolete and was replaced by DA Pamphlet 611-21, dated 31 March 1999. Army Regulation 600-210 states that [the applicant will be enlisted] in the rank that he held at the time of separation.

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

1. The applicant’s DD Form 214 is not available; however, the evidence shows that he was separated from the Regular Army on 1 October 1991 under the provisions of Army Regulation 635-200 because of a locally imposed bar to reenlistment. His grade at the time of his separation was E-4. He had 5 years, 1 month, and 17 days of active service. Notwithstanding the applicant and counsel’s contention, the evidence indicates that he requested a voluntary separation under the provisions of Army Regulation 635-200, paragraph 16-5b. Neither applicant nor counsel has provided any evidence that his separation was in error or unjust.

2. After his separation from active duty in 1991 he enlisted in the Army National Guard of Missouri and was discharged from that component in pay grade E-4 on 16 April 1994 and transferred to the Army Reserve Control Group (Annual Training). Records are not available; however, at some period he transferred to a Reserve troop program unit, was conditionally promoted to sergeant (E-5) on 16 June 2000, and discharged from the Army Reserve in that grade on 14 May 2001.

3. Prior to his enlistment in the Regular Army for three years on 26 June 2001, he had no military status. He obviously did not enlist within 24 months following his separation in 1991, and was not a member of a Reserve Component. Furthermore, there was no vacancy in either his MOS of 88M or 71L; and there is no evidence that he graduated from PLDC, a requirement for enlistment in the grade of E-5. At the time of his enlistment he agreed to the terms of his contract, to include his enlistment grade, as evidenced by his signature of his enlistment contract. His enlistment in pay grade E-4 is valid. Consequently, his request to correct his records to show that he enlisted in pay grade E-5 on 26 June 2001 cannot be granted.

4. The applicant enlisted for duty in MOS 88M10 as evidenced by his enlistment contract. He has provided no evidence to show that his enlistment in that MOS is incorrect or unjust. His request to correct his MOS on his enlistment documents cannot be granted.

5. The 27 June 2001 computer printout shows that the applicant’s BASD is 14 November 1995 as does information on the enlisted distribution and assignment system. The applicant has not indicated to this Board exactly what he believes his BASD to be, and has provided no evidence to support his contention that his BASD is incorrect. Consequently, his request cannot be granted.

6. 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.

NOTE: Because the applicant has indicated that he did not receive a correction to his 1 October 1991 DD Form 214 as directed by the 12 October 1994 Board, the Enlisted Records and Evaluation Center is requested to furnish him the necessary correction.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__CLA __ __TSK __ __CVM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075716
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021210
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.00
2.	112.00
3.	129.00
4.
5.
6.