IN THE CASE OF:	  

		BOARD DATE:	  21 OCTOBER 2008

		DOCKET NUMBER:  AR20080010247


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 he be promoted to the rank of staff sergeant (SSG/E-6) with back pay and allowances.

2.  The applicant states, in effect, that a proper grade determination was never done to correct his DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States), item 18b (Active Duty Service Date) and item 18c (Pay Entry Date).  He also states that DD Form 1966/4 should be corrected to reflect his proper grade determination, proper grade, and proper format as required by Army Regulation to include regulation, paragraph, date, and determination and verification by (name, guidance counselor) date.

3.  The applicant states that several regulations and numerous procedures were violated or totally not adhered to during his reentry into the United States Army.  No proper grade determination was completed upon reentry.  The appropriate entry grade should have been E-5 (SGT) or E-6 (SSG).  At a minimum, had a proper grade determination been completed, he would have enlisted as an E-5.  He states that with the fifteen plus missed promotion opportunities, he definitely should have been an E-6 by now.  He thinks that it is only fair that he be given 
E-6 for all missed promotion opportunities.  He elaborates on the errors on his DD Form 1966, and that they should be corrected, and on the regulations to support his contentions.

4.  The applicant provides a copy of his DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States), a copy of DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States), and several documents from his Official Military Personnel File (OMPF) in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel remains silent.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the United States Army Reserve (USAR) on 17 February 1981 for 6 years.  He enlisted in the Regular Army on 7 April 1981.  He was trained as a Utilities Equipment Repairman in military occupational specialty (MOS) 52C.  He was promoted to SP4/E-4 effective 2 February 1984.  He served until he was honorably released from active duty on 25 April 1984.  He was transferred to the USAR.

2.  The applicant reenlisted in the Regular Army on 12 February 1985 in the pay grade of E-4.  He was promoted to SGT/E-5 effective 1 June 1986.  He served until he was honorably discharged on 20 September 1989.  He had completed 7 years, 7 months, and 28 days of active Federal service.

3.  On 4 March 2006, the Director of Military Personnel Management (DMPM) published a memorandum, subject:  Enlistment Waivers Policy for AHRC (Army Human Resources Command) and AHRC-West (AR 601-210, Chapter 3 and 4). The DMPM stated that during a review of the enlistment waivers process, it was determined that the review process and approval authority should be centralized in one location in order to reduce processing steps/time, while maintaining integrity in the process.  The policy in effect in Army Regulation 601-210, Chapters 3 and 4, required certain waivers to be processed at AHRC and 
AHRC-West for prior service Regular Army and Reserve applicants.

4.  The DMPM stated that effective 3 April 2006, all waivers reviewed/approved by AHRC and AHRC-West, in accordance with (IAW) Army Regulation 601-210, Chapter 4, for enlistment into the Regular Army and Army Reserve would be reviewed/ approved by the Commanding General (CG), United States Army Recruiting Command (USAREC).  Waivers required by Chapter 3 would continue to be processed at AHRC and AHRC-West until 21 April 2006 at which time the approval authority would be delegated to the CG, USAREC.  The CG, USAREC, was required to request assignment instructions from AHRC for all Regular Army waivers approved for applicants in grade E-5 and above.  AHRC and 
AHRC-West were responsible for processing waiver requests currently on hand and those received through 31 March 2006 IAW Chapter 4.  The CG, USAREC, was to ensure no request for waivers IAW Chapter 4 were sent to AHRC or AHRC-West after 31 March 2006.  Additionally, CG, USAREC, was to ensure no request for waivers IAW Chapter 3 were sent to AHRC or AHRC-West after 22 April 2006.  These changes would be incorporated into the next update of Army Regulation 601-210.

5.  On 25 September 2006, the applicant submitted a request for grade determination for the grade of E-5/sergeant addressed "To whom it may concern."  He stated that he appeared before the 32nd Support Command Promotion Board for SGT/SSG.  He was recommended for promotion to the grade of SSG/E-6 with 753 points.  He served in a SSG position with a principal duty MOS of 52C3O for over 2 years.  He attended both the Primary Leadership Development Course (PLDC) and Basic Noncommissioned Officers Course BNCOC) and had accumulated over 356 semester hours of advanced education. He elaborated on his civilian accomplishments.  He concluded by stating that he was ready to reenlist and to complete his career path by retiring in the United States Army and looked forward to serving again.

6.  After a break in service, the applicant reenlisted in the Regular Army on 7 March 2007 in the pay grade of E-4 for 4 years, in MOS 88K, Watercraft Operator.

7.  Item 18b of the applicant's DD Form 1966/1 shows the entry "19850212" (12 February 1985), item 18c shows the entry "19850212", and item 18f (Pay Grade) shows the entry "E04" (E-4).  Section VI - Remarks, of DD Form 1966/4, page 3, shows the entry "Enlistment grade is E-1 IAW AR 601-210, paragraph   2-18."  Section VI - Remarks Continuation of DD Form 1966/6, page 6, states an exception was approved by the Chief, Retention Management Branch (RMB) on 18 October 2006.  As an exception to Retention Control Point, request for grade determination for the purpose of enlistment in the Regular Army was approved in the grade of E-4, provided the applicant was otherwise qualified.

8.  On 26 February 2008, the Legal Assistance Attorney respectfully requested that the applicant be promoted immediately to the grade of E-6 with a date of rank of 6 January 2007 because an incorrect grade determination procedure was used when the applicant reenlisted.  The correspondence states that on 20 September 1989, the applicant was honorably discharged from active duty.  At the time of his discharge, he was promotable IAW Army Regulation 600-200, paragraph 7-19, with over 3 years in grade.  He was serving in an E-6 slot with all Noncommissioned Officer Education System (NCOES) courses and had passed in the upper 90 percent of his class and his entire NCO Evaluation Reports (NCOER) were in the successful to superior rating.

9.  The attorney stated that the applicant initiated an application for reenlistment in the fall of 2006 and regulation required that his request for grade determination be submitted to the CG, AHRC; however, it was never submitted.  He elaborated on the errors contained on the applicant's contract.  He recommended that the applicant be promoted according to regulation.  He indicated that his delay was attributed to investigating and researching the erroneous grade determination procedures applied to his reenlistment contract and that he be promoted immediately.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Force Alignment Division, AHRC-Alexandria.  The opinion stated that after a thorough review of the Soldier’s enlistment contract dated 7 March 2007, no relief was recommended for the Soldier’s request for reinstatement of rank.  AHRC stated that the applicant received a correct grade determination.  At the time of his enlistment, the DMPM delegated the authority to the CG, USAREC, per memorandum dated 22 April 2006.  AHRC stated that the applicant had lost qualifications and skills in his current grade and MOS since the last separation of 20 September 1989.  AHRC concluded that his promotion status was not transferable; once the applicant separated from the service the promotion eligibility was no longer valid.

11.  The applicant was provided a copy of this opinion for possible comment 
prior to consideration of his case.

12.  In his rebuttal, the applicant stated that if a review of his contract was done it should be noted that:  (a) the contract quotes an undated (not specified) Army Regulation 601-210, as required; (b) referenced the wrong regulatory paragraph 2-18 (covers applicants without prior service); (c) required information was in incorrect regulatory format; (d) regulatory required information incorrect or missing; (e ) improper dates appeared several times throughout the complete document shorting this service member in excess of 3 years of active duty service; and (f) his request was for a proper grade determination as per the regulation at the time of enlistment, thus keeping him an E-5 at the time of enlistment and the promotion to E-6 at the minimum time (3 months) after that for the missed promotion opportunities and the procrastination of well over a year by the departments that continue to ignore the regulations and the facts governing a proper grade determination and convoluting the situation.  His request was not for reinstatement of rank.

13.  The applicant also requested that the errors and incorrect dates be changed on his enlistment documents and that the proper formats and content as per the regulation need to be followed.  The later portion of his request was left out in much of the return correspondence from the Army, but was equally important as it would affect his continued service through retirement, as it has affected a proper grade determination.  The applicant stated that it was impossible that he received a correct or legal grade determination and the regulation governing this process was not followed many times over.  He elaborated on the requirements that were not followed in his case.  

14.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.

15.  Paragraph 2-18 of Army Regulation 601-210 pertains to enlistment pay grade for personnel without prior service.  It applies to Regular Army - Delayed Entry Program applicants.  It states that each applicant who claims, but cannot substantiate, qualification for higher enlistment grade will be required to acknowledge that they have read and understood this rule and the time frames established.  An applicant or enlistee will acknowledge this in the remarks section of DD Form 1966.

16.  Chapter 3 of Army Regulation 601-210 prescribes basic eligibility for prior service applicants for enlistment.  Paragraph 3-16 pertains to authorized enlistment pay grade determination.  It states that the pay grade on enlistment into the Regular Army will be determined under paragraph 3-17 and into the USAR under paragraph 3-18.  Grade determination submitted to AHRC Eligibility Inquiry Section (EIS) will also be evaluated for enlistment eligibility.  As required, grade determinations submitted to AHRC-EIS will have all medical or moral waivers completed prior to submission.  Paragraph 3-6(10) states that all applicants will have the authority for pay grade clearly annotated in 
DD Form 1966.

17.  Paragraph 3-17 of Army Regulation 601-210 pertains to enlistment pay grade for applicants with prior military service who are enlisting into the Regular Army.  Paragraph 3-17(b) pertains to former members of a Reserve Component (RC) service.  It states, in pertinent part, that applicants last separated from the Regular Army in grade E-5 with not more than 12 years of total active service and enlist within 24 months following separation, or is a current member of an RC, the enlistment grade will be SGT, provided the applicant has completed the appropriate NCOES leadership requirements or its equivalent and provided a valid vacancy exists for the primary MOS (PMOS) in the grade of SGT.  If no vacancy exists in the former PMOS, enlistment grade will be SGT, provided the applicant accepts retraining in the MOS provided by AHRC-EIS and does not have more than 12 years of active Federal service.  If enlisting after 24 months from completion of military service, the enlistment grade will be determined by the CG, AHRC.  For all applicants in his category, a formal electronic request must be submitted to have enlistment grade and eligibility determined by CG, AHRC.

18.  Chapter 4 of Army Regulation 601-210 pertains to waiver and nonwaiver disqualifications.  Paragraph 4-22 pertains to enlistment grade determination.  It states that any applicant who does not meet enlistment grade criteria of this regulation will be required to have his or her grade determined for enlistment per paragraph 3-16 or 3-17 for Regular Army.  This regulation listed the required documentation required to submit a grade determination for Regular Army personnel.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant completed 7 years, 7 months, and 28 days of prior service in the Regular Army.  He attained the rank of SGT/
E-5.  Prior to his discharge, he appeared before a promotion board and was recommended for promotion to SSG/E-6 and served in a SSG position.  He was honorably discharged on 20 September 1989.  He later saw the opportunity to enlist in the Regular Army and continue his career.  He submitted a request for grade determination on 25 September 2006 which was approved by the Chief, RMB, on 18 October 2006.

2.  After a break in service of 17 years, 5 months, and 18 days, he reenlisted in the Regular Army on 7 March 2007 for 4 years in the pay grade of E-4.

3.  AHRC reviewed the applicant's contract and denied his request for reinstatement of rank and determined that he received a correct grade determination.  At the time of his enlistment, the DMPM indicated that the applicant had lost qualifications and skills in his current grade and MOS since his last separation date of 20 September 1989.  His promotion status was not transferable; once he separated from the service, his promotion eligibility was no longer valid.

4.  The applicant alleges a proper grade determination was never done to correct his DD Form 1966/1, items 18b and 18c, and that his DD Form 1966/4 should be corrected to reflect his proper grade determination, proper grade, and proper format as required by regulation.  He is currently serving in the rank and pay grade of SPC/E-4.  He has provided no evidence, and there is none, to show that an error occurred in preparation of his DD Form 1966/1 or his DD Form 1966/4.

5.  The applicant alleges that several regulations and numerous procedures were violated or totally not adhered to during his enlistment.  The evidence shows that a proper grade determination was submitted and approved prior to his enlistment.  It is apparent that the applicant feels he missed out on several promotion opportunities and that he would have definitely been an E-6 by now; however, there were no promotion opportunities available to him while in a civilian status for 17 years, 5 months, and 18 days.

6.  Based on the foregoing information, the applicant is not entitled to be promoted to the rank and pay grade of SSG/E-6 with back pay and allowances or entitled to another grade determination.

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)                                         AR20080010247



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ABCMR Record of Proceedings (cont)                                         AR20080010247



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