RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 December 2004
      DOCKET NUMBER:  AR2004101123


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Ronald J. Weaver              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reinstatement to the rank of master sergeant
(MSG) in the Army Reserve (USAR).

2.  The applicant states, in effect, that she was specifically recruited to
fill a MSG position as a chief paralegal noncommissioned officer (NCO) in
support of the war in Iraq.  She was offered specific orders that required
her deployment to Kuwait by 1 November 2003.  She was informed that she
would have to accept a one-grade reduction in rank because of her break in
service.  She was also told by the recruiter and his supervisor that a
waiver could be processed and would undoubtedly be approved but that the
process would probably take 90 days.  Since it was already 1 October 2003,
she accepted the one-grade reduction with the understanding that the Third
Army would be able to reinstate her MSG rank.  That information proved to
be false and she has been advised to seek relief from this Board.  She held
the rank of MSG for 5 years, has held many positions of great
responsibility, including as a senior legal secretary at the Office of The
Judge Advocate General and positions at prestigious private law firms.  She
also has a Bachelor of Science in Information Systems.

3.  The applicant provides a 4 October 2003 email from her recruiter that
states that, once she has been assigned, "…Determination and/or
reinstatement can be given from that command at any time.…"  She also
provides a list of her previous assignments and a copy of her recruiting
reservation.

CONSIDERATION OF EVIDENCE:

1.  On 6 October 2003, the applicant, a former MSG, enlisted in the Army
Reserve as a sergeant first class (SFC), pay grade E-7, in military
occupational specialty (MOS) 71L, administrative specialist.

2.  A 4 October 2003 email message from the recruiter to the applicant
explained that, because her break in service was more than 30 months, she
would have to enlist in a grade one pay grade lower than she had held at
separation.  He explained Headquarters (HQ), Army Recruiting Command could
be asked for a waiver, but that the processing time was 60 to 90 days.   He
went on to explain that, "The benefit of being prior service is that once
you are assessed into the Reserves, the RSC immediately takes control of
the Soldiers' files.  Determination and/or reinstatement can be given from
that command at any time."

3.  On 30 October 2003, the 81st Regional Readiness Command ordered her to
15 days annual training as a MSG and did so again, for 14 days commencing
18 November 2003.

4.  On 8 December 2003 the Human Resources Command (HRC), St Louis issued
orders to her as a MSG.  She was ordered to a Contingency Operations
Temporary Tour of Active Duty (COTTAD) for 270 days.  She was assigned to
Third Army HQ and attached to Army Central Command in Kuwait as a MSG.

5.  Army Regulation 601-210 provides the policy and procedures for Regular
Army and USAR enlistments.  Paragraph 3-18 sets forth the enlistment pay
grade rules for prior service personnel for USAR enlistment.  Subparagraph
c states that an applicant who is a former enlisted member, either Regular
or Reserve Component who enlists after a 30 months break in service will be
enlisted in a grade at least one grade lower than the grade last held.
Notes 1, 5, and 9 modify this information as follows:

      a.  Note 1 states, "Authorities in note 10 below may authorize
enlistment in grade held by the person when he or she was last discharged,
if MOS held in previous service equals the MOS for which enlisting, or if
he or she has technical administrative skills needed for the MOS vacancy in
which he or she is enlisting [emphases added].  If the person is enlisting
for a TPU, a vacancy in the MOS must exist."

      b.  Note 5 states, "Applicants who enlist more than 24 months after
date of discharge will be given a DOR of date of enlistment."

      c. Note 9 states, applies only to individuals discharged in pay grade
E-1 and E-2.

      d.  Note 10 provides, in pertinent part, that the following area
commanders have grade determination authority for pay grades E-6 through E-
9 for individuals assigned to supporting troop program units:  U.S. Army
Europe (USAEUR), U.S. Army Pacific Command (USARPAC), U.S. Army Southern
Command (SOUTHCOM), U.S. Army Special Operations Command (USASOC), U.S.
Army Reserve Command (USARC) and U.S. Army Reserve Personnel Center
(ARPERCEN).

6.  During the processing of this case an advisory opinion was obtained
from USARC.  It notes that the applicant could have been authorized
enlistment as a MSG, if a grade determination package had been submitted
and such action was deemed appropriate.  The Assistant Adjutant notes,
however, that there was no MSG vacancy in the applicant's MOS and concludes
that the request would not have been approved.  She further points out that
the applicant had only 2 years of active duty experience as a legal clerk,
did not become MOS qualified and is not now MOS qualified as a paralegal
specialist (27D).

7.  On 1 October 2004 the staff judge advocate (SJA) for the Third
Army/Central Command/Coalition Forces Land Component in Iraq, requested
that the Commander, USARC reinstate the applicant to MSG.  He explained
that, although the MOS that she was recruited under did not match that
which she had been recruited under, she was fully qualified and had in
fact, been slotted into a pay grade E-9 position as Chief Paralegal NCO.
He further explained that the applicant had drilled, been issued annual
training orders and even deployed to Kuwait as a MSG under official orders
by HRC.

8.  The applicant's 1 November 2004 rebuttal to the advisory opinion notes
that she is currently getting paid as a SFC but was paid as a MSG until the
personnel office (G-1) at USARC instituted recoupment of alleged
overpayment.  The applicant also offers the following information,
arguments and documentation:

      a.  On three occasions, she tried to submit reinstatement packages but
each one was shortstopped by the USARC G-1's office because the writer of
the advisory opinion maintains that the only legitimate avenue of relief is
through this Board.


      b.  She also contends that the advisory opinion is wrong in claiming
that she is not in an appropriate vacancy.  She submits a copy of the Unit
Manning Report (UMR) to show that she is serving in a pay grade E-9
position as the Chief, Paralegal NCO.


      c.  To counter the opinion that she was not MOS qualified the
applicant offers extensive descriptions of her past experience, the fact
that she was requested to enlist by people who knew her capabilities and
the success that she has had in varied assignments while deployed.  She
points out that, not only had she been officially awarded MOS 27D,
paralegal specialist, but that she was also qualified under the regulatory
provision that states, "or if he or she has the technical administrative
skills needed for the MOS vacancy in which he or she was enlisting."


      d. The USARC staff judge advocate (SJA) submitted an inquiry to the
individual who serve as the proponent of Army Regulation 601-210 within the
office of the Deputy Chief of Staff for Personnel.  He opined, in effect,
that grade determination by USARC was appropriate in this case.



e.  A letter of commendation from the Multi-National Force-Iraq credits the
applicant with installing, and configuring 35 computers, establishing a
network, administering the office, obtaining supplies and equipment,
establishing procedures and supplying, "the bulk of paralegal support."


      f.  She was awarded the Joint Service Achievement Medal for her
performance in accomplishing the above described duties and functions
during the period 14 May to 14 July 2004.

9.  A lieutenant colonel (LTC), a Judge Advocate General's Corps officer,
writes in support of the applicant's request.  He believes that the
completeness and compelling analysis that she provides for herself is
evidence enough of her capabilities to justify the requested action.  He
goes on to say that he currently serves as the Deputy SJA (Forward) for the
Coalition Forces Land Component Command.  He first met the applicant in
March 2004 when she was sent from Kuwait to Iraq in support of the then new
Multi-National Forces-Iraq.  The Office of the SJA did not have a warrant
officer legal administrator.  The applicant started, organized and managed
automation and filing systems and associated procedures so effectively
that, in the end, they did not need a warrant officer.  On a dangerous
convoy mission through Baghdad, on 5 June 2004, he saw the applicant,
"coolly acquiring targets, pointing her weapon to ward off threats and
communicating with her fellow Soldiers about vehicles coming up behind us
from blind spots.  I found myself doing what she did and following her
example."  Later, when they needed more court reporters, they sent the
applicant to the class.  Although she was the class honor graduate, the
decision to reduce her rank was enforced shortly before she graduated.  She
bore up well and maintained her professionalism although she had to appear
before her instructors and fellow students wearing insignia of a lesser
rank than she had worn earlier.  "She refused to quit, refused to lash out,
and she kept faith with her fellow Soldiers.  She extended on active duty
yet again despite this incident, and will continue to serve proudly
regardless of the decision of this board."

10.  In an 8 November 2004 the Commanding General, United States Army
Reserve Command, a lieutenant general, supported the applicant's request
and asked that the reinstatement to MSG be retroactive to the date of her
enlistment. He states that "It is clear that SFC (applicant's name) was
contacted by the Third Army, Office of the Staff Judge Advocate, prior to
her enlistment and specifically recruited her to fill an E-9 position for
an upcoming deployment.  Her by-name request was due to her previous duty
performance and knowledge; and, since her enlistment, has been performing
admirably….SFC (applicant's name) was improperly advised by the recruiter
as to who had the proper authority to grant reinstatement following her
enlistment.  I feel strongly that a grade determination would have been
approved given the circumstances, had SFC [applicant's] request for
reinstatement to MSG been properly presented to me prior to her enlistment.
 However, SFC [applicant] did not submit a request due to the urgency of
the situation under which she was reenlisting and the belief that it could
be taken care of once she reported to her new command.…it is through no
fault of the Soldier that regulatory procedures were not followed prior to
her enlistment…She has demonstrated knowledge and aptitude for the position
to which she has been assigned since enlisting and should be awarded the
grade appropriate for her position, experience and performance."

11.  A 12 November 2004 memorandum from a sergeant major, the Chief
Paralegal NCO at Headquarters, Third Army writes that the applicant's case,
"is a shining example of the famous cadence ‘my recruiter told me a lie.’
In her haste to serve her country she followed the advice of a so called
professional…My plea is plain and simple…right the wrong…and reinstate her
to the rank of Master Sergeant."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was specifically recruited to fill a specific vacancy by
individuals who knew of her qualifications and capabilities.  By
regulation, she had to enlist in a rank one grade lower than she held upon
separation but had the case been handled properly grade determination
procedures would have reinstated her to MSG.

2.  She was placed by the recruiter in a different MOS as a matter of
expediency.  Whether this was primarily for the convenience of the
recruiter or the unit is not clear, but it is irrelevant.  The applicant's
accomplishments in Kuwait and Iraq have demonstrated that she was qualified
for the paralegal position into which she was immediately placed by the
chain of command that sought her recruitment.

3.  The applicant may have been misled as to the ease with which a grade
determination could have been accomplished; however, it is clear that she
had no reason to pursue the matter until she was "reduced" to SFC.  She
was, after all, deployed to a combat zone on official orders by HRC, St
Louis as a MSG.  She should not be penalized for her willingness to enlist
and serve rather than await the outcome of a grade determination procedure.


4.  Notwithstanding the advisory opinion provided by his own G-1, the
Commander, USARC now joins the applicant's chain of command in asking this
Board to grant the requested relief.

5.  The applicant should be retroactively restored to the rank and pay
grade of MSG (E-8), effective on and with a date of rank of 6 October 2003
and she should be paid retroactively from that date.

BOARD VOTE:

__YM___  __RJW __  __ML___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
retroactively restoring her to the rank and pay grade of MSG (E-8),
effective on and with a date of rank of 6 October 2003 and paying her
retroactively from that date.




                                  _    Yolanda Maldonado________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101123                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041216                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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