IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20070014192 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record show he was never in the Army.

2.  The applicant states, in effect, that his various Army locations show different information for his military status.  He claims, in effect, that a recruiter convinced him to pretend to ship out, resulting in his AWOL (absent without leave) status.

3.  The applicant provides a self-authored statement of events; Report of Investigation (ROI), dated 13 January 2005; Legal Review of Report of Inquiry, dated 19 January 2005; and Separation Orders, dated 7 December 2005 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 4/1 (Enlistment/Reenlistment Document, Armed Forces of the United States) shows the applicant enlisted in the United States Army Reserve (USAR) Delayed Enlistment Program (DEP) on 2 October 2004.

2.  The applicant’s Statement for Enlistment shows that he acknowledged his enlistment in the USAR for an obligation of 8 years beginning on the date of his enlistment in the DEP.  He also acknowledged that upon enlistment into the Regular Army for a period of 3 years and 19 weeks he would enlist under the following programs under Army Regulation 601-210 (Active and Reserve Components Enlistment Program):  Program 9A (US Army Training Enlistment 

Program (UNCM) and Program 9C (U.S. Army Incentive Enlistment Program 
(Statement of Intent for Special Forces Selection, US Army Cash Bonus, 3 Yr Enl, US Army Seasonal Bonus (High Priority Seats)), I-IIIA).  The applicant acknowledged that his enlistment in the Regular Army was scheduled to begin on 21 October 2004.

3.  DD Form 1966/3, Record of Military Processing – Armed Forces of the United States shows in item 30 (Data Verification by Recruiter) that the recruiter verified the applicant's name, Social Security Account card, birth certificate, and citizenship.  

4.  An ROI, dated 7 January 2004, shows that an investigation was conducted to determine why the applicant failed to report to active duty after taking the oath of enlistment.  The investigating officer's findings show that the available evidence did not prove that the recruiter asked the applicant to complete the processing at the MEPS [Military Entrance Processing Station] on his ship date, so he would not get a DEP [departure] loss and determined that the allegations against the recruiter were unsubstantiated.  

5.  On 13 January 2005, the Commanding Officer of the U.S. Army Recruiting Battalion, Sacramento, Rancho Cordova, California, responded to the ROI recommendation, dated 7 January 2004.  The commanding officer stated that after a careful review of the ROI findings, dated 7 January 2004, he recommended that the report be closed as unsubstantiated.  The commanding officer concluded that he did not suspect any impropriety in the case.

6.  On 19 January 2005, a legal review of the ROI shows that a preponderance of the evidence did not substantiate the allegation of recruiter misconduct.  The review concluded that neither disciplinary action under the Uniform Code of Military Justice (UCMJ) nor adverse administrative action was warranted.

7.  On 25 January 2005, the Chief of Staff of the U.S. Army Recruiting Battalion, Sacramento, Rancho Cordova, California, reviewed the investigation and concurred with the findings and recommendations of the investigating officer and the battalion commander.  The Chief of Staff recommended that the report be closed as unsubstantiated and the report be forwarded in accordance with USAREC Regulation 601-45 (Personnel Procurement Recruiting Improprieties Policies and Procedures), paragraph 3-6c (1) (a), dated 15 October 2001 for the applicant's separation from the USAR Delayed Entry Program.



8.  Department of the Army U.S. Army Recruitment Battalion, Sacramento, Rancho Cordova, California Separation Orders Number 302-01, dated 7 December 2005, shows that the applicant was separated under the provisions 
of Army Regulation 135-178 (Enlisted Administration Separation), on 29 October 2004, from the USAR Delayed Entry Program, Fort Knox, Kentucky, under the DEP discharge code of ZBE "Did Not Report on Date Scheduled for Active Duty (AD) - Separation Action Initiated." 

9.  The applicant contends in his self-authored summary of events that in July 2004 he worked as a part time security guard in a local bar in Monterey California where he met an Army recruiter.  The applicant contends that he did not have a full time job and after talking with the Army recruiter became interested in enlisting in the Special Forces.  The applicant continues that he talked over his choices with his girlfriend, who is now his wife, and they agreed he should enter the Special Forces.  The applicant continues that he could not get a clearance for Special Forces and was told he would have to pick another job series.  The applicant continues that he and his girlfriend only talked about him entering the Special Forces.  The applicant alleges that he was told if he didn't pick a job that day the Army recruiters would not help him if he came back again.  

10.  The applicant adds that he was frustrated and hastily picked the infantry series to get out of the MEPS and go home.  The applicant continues that he entered the delayed entry program and was scheduled to leave a month later for [the U.S. Army Training and Doctrine Command (TRADOC)], Fort Benning, Georgia.  The applicant continues that a few days later he called the Army recruiter and told him he wanted to cancel his enlistment.  The applicant adds that he went to the Army recruiter's office and reviewed the cancellation paperwork.  The applicant states that he was advised to sign the cancellation paper but not date it until the last minute in case he wanted to change his mind.  The applicant adds that he agreed to wait and went home.  

11.  The applicant alleges that a few weeks later the Army recruiter came to his home and asked him to do him a favor by pretending to ship out to TRADOC, Fort Benning, Georgia.  The applicant adds that the Army recruiter told him if he went to MEPS and went through the motions of shipping out but did not get on the plane he would not be in the Army.  The applicant alleges that the Army recruiter stated that it had been done before and he repeatedly promised him he would not get in trouble.  The applicant adds that the recruiter explained this to him and his girlfriend several times and believed that a man in uniform seemed to be trustworthy, so he agreed to do it.  

12.  The applicant alleges that the recruiter drove him to the MEPS a couple of days later, went to the hotel with the other enlistees, signed in, and went out of the back door of the hotel where the recruiter waited to take him home.  The 
applicant states that he could not believe he did this.  The applicant continues that a couple of weeks later he received a call from a captain at the MEPS who told him he was AWOL.  

13.  The applicant states that after talking with the captain at MEPS about his situation he was asked to come in and write a statement, which he did.  The applicant further states he and his girlfriend met with another captain at the MEPS who had both of them write statements about his recruitment.  The applicant continues after that he never heard anything from MEPS or the Army.  The applicant states that life went on and he got a job at the Fort Ord Commissary in Seaside, California.  The applicant further states he received his clearance and returned to his old job as an armed guard at the DLI [Defense Language Institute] in the Presidio of Monterey, California were he worked as a government contractor. 

14.  The applicant contends that a year later he decided join the Army again, talked with an Army recruiter and told him what happened during his last recruitment.  The applicant adds that the recruiter tried to get him a waiver which remained in a delayed status.  The applicant argues a third Army recruiter took on his case by getting him a paper that said he was never in the Army and also got the waiver situation handled.  The applicant continues that this recruiter took him to the MEPS station and told them the applicant had already shipped out; however, TRADOC, Fort Benning, Georgia, showed him as being AWOL.  The applicant alleges that he has a piece of paper stating that he was never in the Army but based on the conflicting in information he was unable to join.  The applicant continues that he again became frustrated with the Army and did not want to join anymore.  The applicant concludes that he would like his status resolved.

15.  United States Army Recruiting Command (USAREC) Regulation 601-96
(Guidance Counselor Procedures), establishes policies, responsibilities, and procedures for guidance counselor processing of applicants for enlistment into the Regular Army and Army Reserve.

16.  Chapter 6 of Army Regulation 601-210 MEPS Processing Phase, provides policy and guidance for those functions that are administered at MEPS by MEPCOM (Military Entrance Processing Command) personnel and guidance counselors to confirm that they accomplished all procedures in the enlistment 

process by making the appropriate entries in the DD Form 1966 series and DA Form 3286-66.  Paragraph 6-5.g. states that the guidance counselor "counsels applicants who failed to meet specific qualifications for options for which they applied; and advises them of other available options."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to correction of his records to show he was never enlisted in the Army Reserve was carefully considered and determined to lack merit.

2.  The applicant's records show that he enlisted in the Army Reserve, U S Army Delayed Enlistment Program for 8 years on 2 October 2004; took the oath of service; and acknowledged that his enlistment in the Regular Army was scheduled to begin on 21 October 2004 as authenticated by his signature.  

3.  The applicant's records also show he returned to the MEPS station and took a second oath of service but failed to report to TRADOC, Fort Benning, Georgia.  
4.  Evidence of record shows that by a preponderance of the evidence the applicant's allegation of coercion by the Army recruiter was unsubstantiated.  

5.  The applicant's records correctly show that he was separated on 29 October 2004 from the USAR DEP for failure to report for active duty.  Absent evidence to the contrary, there is no basis to amend the applicant's service record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  ___X_ ___  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.




      _____________X__________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070014192



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ABCMR Record of Proceedings (cont)                                         AR20070014192



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