IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080014251 


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 her military records be corrected to show that she enlisted in the Regular Army on 22 June 2006 in the rank and pay grade of staff sergeant (SSG)/E-6. 

2.  The applicant states that she was promoted to SSG/E-6 on 1 July 1989 while she was on active duty, and that she was selected and completed all necessary military schools to be eligible for promotion to sergeant first class (SFC)/E-7.  She also states, in effect, that she was informed by a Military Entrance Processing Station (MEPS) noncommissioned officer (NCO) that there were no SSG/E-6 positions available in her military occupational specialty (MOS) of 92Y (Unit Supply Specialist), and that she was reduced to the rank of sergeant (SGT)/E-5 in order to reenter the Regular Army.  

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) which covered her active duty service from 4 October 1985 to 27 September 1994; her DD Form 214 which covered her active duty service from 25 May 1979 to 24 July 1982; her DA Form 2-1 (Personnel Qualification Record - Part II) from her active duty service from 4 October 1985 to 
27 September 1994; her DD Form 4-series (Enlistment/Reenlistment Document - Armed Forces of the United States) from her 22 June 2006 enlistment; her Enlisted Personnel Qualification Record, dated 1 March 2006; and her Enlisted Record Brief, dated 7 March 2008 in support of her application.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that after having prior service in the Regular Army and United States Army Reserve (USAR), she enlisted in the Regular Army on 4 October 1985 in the rank of private first class/E-3.  She progressed in rank, and was promoted to SSG/E-6 with a date of rank and effective date of 1 July 1989.  She completed the 92Y Advanced NCO Course on 1 February 1993.  On 27 September 1994, she was honorably discharged from the Regular Army due to parenthood.  

2.  On 28 September 1996, the applicant enlisted in the USAR for 6 years in the rank and pay grade of SSG/E-6.  On 26 September 2002, she was transferred from her USAR Troop Program Unit to the USAR Control Group (Reinforcement). The applicant's record is not clear regarding her service from 26 September 2002 through 21 June 2006.

3.  On 22 June 2006, the applicant enlisted in the Regular Army for 3 years and 
2 weeks in the rank and pay grade of SGT/E-5.  Her enlistment contract contained a DA Form 3286 (Statement of Understanding – Regular Army Enlistment Delay for Applicant's with Prior Service or an Existing Military Service Obligation) which shows that she acknowledged that her application for enlistment into the Regular Army had been accepted with, in part, the condition that her entry grade as determined in accordance with Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) would be E-5.  Section VI (Remarks) of her DD Form 1966-series (Record of Military Processing - Armed Forces of the United States) also shows that the request for her grade determination was approved in the grade of E-5, and that there were no vacancies in the applicant's MOS in the rank of SSG/E-6.  It also shows that she was granted an exception to policy to the retention control point for E-5.

4.  During the processing of this case, on 7 October 2008 an advisory opinion was obtained from the Force Alignment Division, United States Army Human Resources Command, Alexandria, Virginia.  That office recommended that no relief be granted to the applicant regarding her request for reinstatement of her rank.  That office also stated that at the time of the applicant's enlistment, there were no enlistment vacancies in the MOS and grade of 92Y/E-6, and that in accordance with the guidance for grade determinations, she was administratively reduced and allowed to retain her MOS of 92Y.  That office further stated that the applicant voluntarily enlisted in the grade of E-5, and that a review of her enlistment records shows that she was fully aware of this fact prior to her enlistment on 22 June 2006.  Additionally, that office stated that a review of her grade determination performed by the United States Army Recruiting Command was found to be without error and in accordance with established policy.

5.  On 15 October 2008, a copy of the advisory opinion was forwarded to the applicant for information and possible rebuttal prior to consideration of her case by the Board.  To date she has not responded.

6.  Army Regulation 601-210, in effect at the time, provided guidance on enlistment pay grades and terms of enlistment for Regular Army applicants with prior military service.  Paragraph 3-17 provided, in pertinent part, that if an applicant was last separated from any Component or is a current member of the Reserve Component in the grade of SSG with not more than 17 years of active federal service, the enlistment grade and eligibility will be determined by the United States Army Human Resources Command.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show that she enlisted in the Regular Army on 22 June 2006 in the rank and pay grade of SSG/E-6. 

2.  While it is clear that the applicant previously held the rank of SSG/E-6, at the time of her enlistment into the Regular Army on 22 June 2006, there were no SSG/E-6 vacancies in her MOS of 92Y and, as a result, she was allowed to enlist in the rank of SGT/E-5 with an exception to policy to the retention control point for an E-5.  Additionally, her 22 June 2006 contract clearly shows that she voluntarily (emphasis added) enlisted in the Regular Army in the rank/grade of SGT/E-5.  While the applicant feels that her enlistment in the Regular Army in the rank of SGT was unjust, it was accomplished with her consent and in accordance with regulations and requirements in effect at the time.  Therefore, there is no evidence that an error or actual injustice occurred during her enlistment on 22 June 2006. 

3.  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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of her service in arms.



      _________XXX_____________
               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)                                         AR20080014251



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ABCMR Record of Proceedings (cont)                                         AR20080014251



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