IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080004477 


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 that his records be corrected to show he enlisted in March 1989 in the rank and grade of Sergeant (SGT), E-5.  

2.  The applicant states that he had previously served in the Active Army as a Specialist Five, E-5.  He was a SGT in the Utah Army National Guard (UTARNG) just prior to his March 1989 enlistment in the Regular Army.  He was and still is a Licensed Practical Nurse (LPN).  He should have been enlisted as a SGT.  He had to re-attend basic training.  He could have re-entered in military occupational specialty (MOS) 82C as a Specialist, E-4, and been assigned immediately to Fort Hood, TX, without having to re-attend basic training. He elected to enter as a 91C (LPN) with a current license from the State of Utah.  He graduated from Salt Lake City Community College on or about 22 June 1988, and he received his LPN license in January 1989.  He is not asking for back pay, only the rank.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant previously served in the Regular Army, in MOS 82C, from       19 April 1975 through 22 October 1981, when he was honorably discharged in the rank and grade of Specialist Five, E-5.  He enlisted in the UTARNG on        11 April 1984 and served as a patient care assistant and practical nurse.  He was honorably discharged from the UTARNG, in the rank and grade of SGT, E-5, effective 30 (per his National Guard Bureau Report of Separation and Record of Service) March 1989 to enlist in the Regular Army.

3.  The applicant’s DD Form 1966 (Record of Military Processing – Armed Forces of the United States), signed by him on 30 March 1989, indicated he worked at Cottonwood Hospital from July 1988 to the present as an LPN.  It indicated he attended Salt Lake Community College from July 1987 to June 1988 and did not graduate.  It stated his authorized enlistment grade was E-3 in accordance with Army Regulation 601-210, Table 3-3, Rule N.

4.  Item 17 (Civilian Education and Military Schools) on the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he completed 56 semester hours from Salt Lake Community College in 1988.

5.  The applicant enlisted in the Regular Army on 30 March 1989 in the rank and grade of Private First Class, E-3.  

6.  Item 35 (Record of Assignments) of the applicant’s DA Form 2-1 shows he performed duties in MOS 91C1O (skill level 1O applying to an E-1, E-2, E-3, or E-4 level duty position).

7.  The applicant was honorably discharged on 1 August 1992 in the rank and grade of Specialist, E-4.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), Table 3-3 of the version dated 11 September 1987, established Rules A through P to determine the Regular Army enlistment grade of a prior service individual.  Rule A applied to those who enlisted within 24 months of completing initial active duty for training.  Rules B through G and Rule I applied to those who were last separated from the Regular Army.  Rule H applied to those who were last separated in pay grade E-7, E-8, or E-9.  Rules J through M applied to those who were last separated from the active Navy, Air Force, Marine Corps, or Coast 

Guard.  Rule N applied to any prior service individual with college credits.  Rule O applied to those who last separated as a member of the ARNG or the U. S. Army Reserve on active duty (not a training tour).  Rule P applied to former officers.

9.  Army Regulation 601-210, Table 3-3, Rule N, stated any prior service individual with college credits could be enlisted with grade determined by Table 2-3, Rule E.  Table 2-3, Rule E, stated an individual with 30 to 59 classroom semester hours could enlist in pay grade E-3.

10.  Army Regulation 601-210, Chapter 7, provided guidance for enlistment under the Army Civilian Acquired Skills Program (ACASP).  In pertinent part, it stated that to qualify for MOS 91C with later appointment to E-5 the individual must have successfully completed a State-approved course in practical, registered, or vocational nursing; must have possessed a current State or Commonwealth of Puerto Rico license as a practical, registered, or vocational nurse; and must have completed the required proficiency training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended he was an LPN when he enlisted in the Regular Army and should have been enlisted as a SGT.  He contended he graduated from Salt Lake City Community College on or about 22 June 1988, and he received his LPN license in January 1989.

2.  Under the grade enlistment criteria outlined in Army Regulation 601-210, Table 3-3, the applicant was not authorized to enlist in any grade other than E-3, under the criteria listed in Table N.  Even if he had enlisted in MOS 82C, E-3 is the highest grade in which he could have enlisted.  

3.  The applicant voluntarily signed his March 1989 enlistment contract.  By signing that contract, he was agreeing to be enlisted in the rank and grade of Private First Class, E-3.

4.  The applicant might be referring to enlisting under the provisions of Army Regulation 601-210, Chapter 7, the ACASP.  Such an enlistment would not have allowed for his enlistment as an E-5, but it would have provided for his later appointment, after completing the required proficiency training, to E-5.

5.  Nevertheless, almost 20 years after the event, it cannot be determined if the applicant’s recruiting officials were unaware of the ACASP or if the applicant did not have the documents verifying he met the criteria for enlistment under the ACASP at the time he signed his enlistment contract.  It is unlikely he was not made aware of the possibility while he was still on active duty.  In a hospital environment he was almost certain to meet other Soldiers in either MOS 91C or in another medical MOS who did enlist under the ACASP and who would have mentioned the ACASP (or he may have wondered how they made rank so quickly and asked them).  In any case, there is no evidence of record to show the applicant ever served in the 91C2O position that he would have served in had he enlisted under the ACASP and later been appointed an E-5.  

6.  At this point in time, there is insufficient evidence to show the applicant was unaware of a possible error in his enlistment grade while he was on active duty, when a meaningful consideration of his case could have been made.  There is insufficient evidence to show he actually met the criteria for enlistment under the ACASP at the time.  There is also insufficient evidence to show he was not aware of the ACASP at the time of his enlistment and for reasons of his own (perhaps not wanting to wait until verifying documents could be obtained) made a deliberate decision to enlist on 30 March 1989 in the rank and grade of Private First Class, E-3.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___   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.




 _   _______xxxx___________
       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)                                         AR20080004477





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ABCMR Record of Proceedings (cont)                                         AR20080004477



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