RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 July 2006
      DOCKET NUMBER:  AR20050012830


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Robert J. Osborn, II          |     |Chairperson          |
|     |Mr. John M. Moeller               |     |Member               |
|     |Ms. Naomi Henderson               |     |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, in effect, that his enlistment contract be
corrected to show he enlisted in the pay grade of E-5 instead of E-4 and
that he be paid all back pay due.

2.  The applicant states, in effect, that in accordance with regulation, he
met the criteria to enlist in the rank of sergeant/pay grade E-5 when he
returned to active duty.  He continues that regulation states the
enlistment grade will be sergeant provided that the individual enlists
within 24 months from the date of the last separation and a valid vacancy
exists for the individual's primary military occupational specialty (PMOS).

3.  The applicant further states that if no vacancy exists in the former
PMOS, then the enlistment rank would be specialist/pay grade E-4 provided
the individual does not have more than 5 years of Active Federal Service.
He continues that he had 6 years and 6 months of service.

4.  The applicant provides a copy of his Inspector General Action Request
Packet; a copy of DD Form 214 (Certificate of Release or Discharge from
Active Duty); a US Army Recruiting Battalion Seattle memorandum, dated 27
January 2004; US Army Recruiting Company, Tacoma memorandum, dated 21
January 2004; 26 pages of electronic mail; a copy of his enlistment packet;
a Request for Conditional Release, dated 31 December 2003; and a U.S. Army
Human Resources Command memorandum, dated 6 February 2004, in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army on 28 August 1996.  He served in
military occupational specialty 91A (Medical Equipment Repairer) and served
until he was honorably released from active duty on 29 January 2003 in the
rank of sergeant/pay grade E-5.  He was transferred to the Army Reserve to
complete his obligated service.  The applicant served 6 years, 5 months,
and 2 days of active service.

2.  On 31 December 2003, the applicant submitted a Request for Conditional
Release from the Army Reserve for entrance into the Regular Army.




3.  The applicant submitted a U.S. Army Human Resources Command memorandum,
dated 6 February 2004, from the Chief, Policy and Eligibility Inquiries
Branch.  The Chief, Policy and Eligibility Inquiries Branch stated that the
pay grade E-4 was authorized for the applicant's enlistment, provided that
he is otherwise authorized.  The Chief, Policy and Eligibility Inquiries
Branch further stated that there were no vacancies in the applicant's
military occupational specialty (MOS) in the pay grade of E-5 and
consideration for retraining in the pay grade E-5 was reviewed, but could
not be favorably considered due to lack of training seats.

4.  The applicant's DA Form 4/1 (Enlistment/Reenlistment Document), dated
19 May 2004, shows that he enlisted in the Regular Army for a period of
3 years and 00 weeks in the pay grade E-4.

5.  The applicant's DD Form 1966 (Record of Military Processing – Armed
Forces of the United States), dated 19 May 2004, shows that he enlisted in
MOS 91A in the pay grade E-4.

6.  On 10 December 2004, the applicant submitted a DA Form 1559 (Inspector
General Action Request) requesting action regarding his entry pay grade of
E-4 to be changed to show pay grade E-5 with all back pay.

7.  On 14 December 2004, the Office of the Inspector General of
Headquarters, Eighth United States Army responded to the applicant's
request.  The Chief, Assistance and Investigations Division stated the
applicant's request was referred to the U.S. Army Human Resources Command
Inspector General office, which reviewed and determined that his grade
eligibility prior to his enlistment was properly processed on 6 February
2004.

8.  The Chief, Assistance and Investigations Division continued that the
Policy and Inquiries Branch determined the applicant would be authorized to
reenlist in the pay grade of E-4 and that there were no vacancies in his
MOS in the pay grade E-5.  The Chief, Assistance and Investigations
Division further stated that the applicant was made aware of this
determination when he reenlisted on 19 May 2004.

9.  In connection with the processing of this case, an advisory opinion was
obtained from the U.S. Army Human Resources Command, Alexandria, Virginia,
dated 3 November 2005.  The Chief, Force Alignment Division opined the
applicant last separated from the Army on 29 January 2003 in pay grade E-5
and received authorization from the Eligibility Inquiry Section to re-enter
and enlisted on 6 February 2004 in the MOS 91A in the pay grade of E-4.
10.  The Chief, Force Alignment Division continued that at the time of the
enlistment, the applicant did not have more than 12 years of total active
service and enlisted within 24 months from the date of his last separation.
 The Chief, Force Alignment Division further opined the applicant did meet
the criteria to retain the pay grade E-5; however, a valid vacancy did not
exist in PMOS 91A in the pay grade of E-5.

11.  The Chief, Force Alignment Division stated that at the time of
enlistment, the applicant's PMOS (91A) at the pay grade E-5 was over-
strength at 107% while in pay grade E-4 it was under-strength at 75%.  The
Chief, Force Alignment Division continued that in accordance with the
regulation, the applicant was considered for retraining; however, there
were no training spots available at that time.

12.  The Chief, Force Alignment Division determined that the applicant's
pay grade of E-4 upon reentry into the Active Army is correct.

13.  The applicant was provided a copy of the advisory opinion for review
and comment.  The applicant did not provide rebuttal comments.

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program) covers eligibility criteria, policies and procedures for
enlistment and processing into the Regular Army (RA) and the U.S. Army
Reserve.  Paragraph 3-17b(2) states that if the applicant was last
separated from the Regular Army in the grade of sergeant with not more than
12 years total active service and enlists within 24 months following
separation, the enlistment grade will be sergeant and provided a valid
vacancy exists for the PMOS in the grade of sergeant.  If no vacancy exists
in the former PMOS, the enlistment grade will be sergeant, provided
applicant accepts retraining in the MOS provided by HRC-EIS and does not
have more than 12 years active Federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his enlistment contract be corrected to
show he enlisted in the pay grade of E-5 and receive all back pay due.

2.  Evidence shows the applicant met the criteria set by regulation to
enlist in the pay grade of E-5 when he reentered the active Army.  However,
PMOS 91A was already over strength and there was no space available for
training in the pay grade of E-5 at that time.

3.  Therefore, the applicant's reenlistment contract showing the enlistment
pay grade of E-4 in the PMOS 91A is correct as currently constituted.

4.  The applicant has failed to provide any evidence or argument that shows
that there was an error or injustice related to his pay grade at the time
of his enlistment.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JMM___  __NH___  _RJO___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                    ___Robert J. Osborn, II____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012830                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060713                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  222  |112.0000.0000                           |
|2.  307                 |129.0500.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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