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ARMY | BCMR | CY2008 | 20080017748
Original file (20080017748.txt) Auto-classification: Approved

		IN THE CASE OF:	  

		BOARD DATE:	  	   30 April 2009

		DOCKET NUMBER:  AR20080017748 


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, reconsideration of his previous request that his records be corrected by:

   a.  promoting him to the grade of staff sergeant (E-6) with all back pay and allowances, 

   b.  amending his DD Form 1966/1(Record of Military Processing-Armed Forces of the United States), block 18b (active duty service date),
   
   c.  amending his DD Form 1966/1, block 18c (pay entry date),
   
   d.  amending his DD Form 1966/4, to show a proper grade determination,
   
   e.  amending his DD Form 1966/4, to show his proper grade, and 
   
   f.  showing that the memorandum submitted requesting his grade determination was formatted in accordance with Army Regulation 25-50 (Preparing and Managing Correspondence). 

2.  On a separate document, the applicant requests that his Leave and Earnings Statement be corrected to show his correct DIEMS (date of entry into military service) date.


2.  The applicant states, in effect, that his request for reconsideration is two-fold.  He states that the first basis for reconsideration is because the information on his DD Form 149 was incorrectly presented by the Board:

   a.  the original wording of the DD Form 149 in several paragraphs throughout the Record of Proceedings was changed, thus changing the entire meaning of his request; and  
   
b.  by not stating his full and complete errors or injustice; his DD Form 149 has six sentences and the Record of Proceedings, has only one sentence.

3.  He also states, in effect, that the new evidence for the second basis for his reconsideration is a copy of his DD Form 2808 (Report of Medical Examination) that shows his medical waivers were received on 20 December 2006.  He also states that his DD Form 1966/4 shows that his medical waivers were received on 9 November 2006, and a copy of his DD Form 1966/6 shows that his grade determination was completed on 18 October 2006.  He therefore states, in effect, that these documents show that the grade determination was not processed in the correct order.  He also states, in effect, that a memorandum completed in accordance with Army Regulation 25-50 and a copy of his current Military Entrance Processing Station (MEPS) physical examination was not submitted to get his grade determination but were required per Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), paragraph 4-22, dated 16 May 2005.  He states, in effect, they did not have a copy of his complete job history, educational background, or background investigation.  

4.  The applicant provides a copy of ABMCR Record of Proceedings AR20080010247, dated 21 October 2008; a copy of his DD Form 2808; a copy of his DD Form 1966-series; copies of his DA Form 3286 (Statement of Understanding); and a copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's record be corrected to indicate approval of his grade determination to E-5.

2.  Counsel states, in effect, that the Board's previous decision was based on an incorrect regulation.  Counsel states that Army Regulation 601-210, paragraph
3-17 should have been used.  Counsel also states, in effect, that the Recruiting and Retention Command provided inaccurate information regarding the grade required to attend the 88K training.  Therefore, counsel requests that the applicant's previous Record of Proceeding be reviewed. 
3.  Counsel provides no additional documentary evidence in support of this applicant.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR200810247, on
21 October 2008.

2.  The applicant references a memorandum that was apparently no prepared in accordance with Army Regulation 25-50.  The applicant did not submit or clearly identify what memorandum he means.  Therefore, this issue will not be discussed any further in these Proceedings.  

3.  The applicant provided new arguments and new evidence based on the content of the previous Record of Proceedings which merit consideration by the Board.

4.  The applicant submitted a copy of a DD Form 214, dated 25 April 1984, which shows that he initially entered the Regular Army on 7 April 1981.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 52C, Utilities Equipment Repairer.  The applicant served until he was released from active duty on 25 April 1984 after completing 3 years and     18 days of creditable active service and transferred to the United States Army Reserve to complete his military service obligation (MSO).  This DD Form 214 indicates he had about 1 month and 20 days of prior active service (the amount of service is partially illegible), an indication that he had enlisted in the Delayed Entry Program around early March 1984.  His electronic records do not contain his initial enlistment contracts.

5.  The applicant requested correction of his records to show correction of his Leave and Earnings Statement to show his DIEMS.  The applicant did not request this correction in his initial application to the Board and there is no evidence which shows that the applicant exhausted all administrative avenues available to him by applying at his local personnel and finance office for correction of this item.  He will need to provoide his first DD Form 214 and possibly his initial enlistment contract.  The DIEMS is the date an individual was initially enlisted, inducted, or appointed in a Regular or Reserve Component of a uniformed service as a commissioned officer, warrant officer, or enlisted member.  This date is used primarily to determined a member's retired pay base. Retired pay of a member who first became a member of a uniformed service before 8 September 1980 is computed differently than that of a member who entered a uniformed service on or after 8 September 1980.

6.  The applicant submitted a copy of a DD Form 214, dated 20 September 1989, which shows he again enlisted in the Regular Army on 12 February 1985.  The applicant's original Record of Proceedings contain a copy of a Report of Promotion Board Proceedings to Pay Grade E-5 and E-6, dated 9 March 1987, which shows that the applicant was recommended for promotion to pay grade   E-6.  His DD Form 214 shows that he was discharged on 20 September 1989 after completing 4 years, 7 months, and 9 days of creditable active service.  The highest grade he held during this period of active duty service was sergeant, pay grade E5.

7.  The applicant submitted a copy of his DD Form 2808.  Item 78 (Recommendations - Further Specialist Examinations Indicated) shows that a waiver was recommended.  Item 85 (This examination has been administratively reviewed for completeness and accuracy) was signed and dated on                    21 September 2006.  Item 86 (Waiver Granted (If yes, date and by whom)),      did not contain a check mark in the yes/no block but was initialed and dated        3 October 2006.  

8.  The applicant submitted a DA Form 3286, dated 1 January 2007, which shows that the applicant enlisted in the Regular Army on 7 March 2007, and his entry grade in accordance with Army Regulation 601-210 would be E-4. 

9.  The applicant's official military records contains a copy of his DD Form 4 (Enlistment/Reenlistment Document of the United States), dated 7 March 2007, which shows in Section B (Agreements), item 8 that the applicant was enlisting in the Army for 4 years in pay grade E-4.  Item 8c shows that the applicant attested by his initials that the agreements in this section and attached annex(es) were all the promises made to him when he enlisted.  Item 13 in Section D shows by the applicant's signature that the agreement in Section B will be honored. 

10.  The applicant submitted a copy of his DD Form 1966/1 which shows that he enlisted in the Regular Army after a 17-year break in service on 7 March 2007.  Item 18b (active duty service date) shows "19850212," item 18c (pay entry date) shows "19850212," and item 18f (Pay grade) shows he was accessed in the Regular Army in pay grade E-4 (enlisted/specialist).

11.  His DD Form 1966/4 shows in Section VI (Remarks) that his enlistment grade is E-4 in accordance with Army Regulation 601-210, paragraph 2-18.  It shows that a medical waiver was approved by the Headquarters, Command Surgeon on 9 November 2006.  It also shows that a medical waiver was approved by the Headquarters, Command Surgeon on 16 October 2006.  

12.  His DD Form 1966/6 shows in Section VI (Remarks Continuation) that an exception to the retention control point and request for a grade determination was approved by the Chief, Retention Management Branch (RMB) on 18 October 2006.  As an exception to the Retention Control Point, a 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.

13.  Army Regulation 600-200 (Enlisted Personnel Management System) in effect at the time of the applicant's discharge in 1989, states, in pertinent part, that Soldiers who have been separated and/or discharged without reentry within
24 hours will be removed for the local recommended list. 

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 in the Regular Army will be determined under paragraph 3-17.  Grade determination submitted to Alexandria Human Resources Command 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 the 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.  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 who enlist within 24 months following separation, or are current members of an RC, the enlistment grade will be SGT, provided the applicant has completed the appropriate Non-Commissioned Officer Education System 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 Commanding General (CG), AHRC.  For all applicants in this category, a formal electronic request must be submitted to have enlistment grade and eligibility determined by the CG, AHRC.

18.  Chapter 4 of Army Regulation 601-210 pertains to waiver and nonwaiver disqualifications.  Paragraph 4-5, in pertinent part, states that documents required for waiver consideration must include a current copy of the applicant's MEPS examination.  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.

19.  Army Regular 601-210, paragraph 6-18(b and c) states, in pertinent part, that for applicants with previous military service the active duty service date in item 18b and the pay entry date item 18c will be computed by personnel and finance at the first duty station.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show that he should have been authorized to enlist as an E-5 and to be promoted to E-6 was carefully considered and found to be without merit.  The applicant's contentions that he enlisted under the wrong authority and that his active duty service and pay entry dates were incorrect were carefully considered and found to have merit.

2.  The preponderance of the evidence of record shows that the applicant accepted enlistment in the Regular Army in the grade of E-4 as authenticated by his signature on the DD Form 1996 series documents and ultimately the DD Form 4 on the date of his enlistment.  The evidence of record also shows that the applicant reenlisted after more than a 24-month break in service from the date of his second discharge on 20 September 1989 and his third enlistment on 7 March 2007. 

3.  The applicant stated that his medical waiver was approved after the grade determination was completed and mentioned a date of 20 December 2006.  However, he did not submit any evidence which verified this claim nor does his record contain any evidence that corroborated his statement.  The evidence of record shows that the applicant's physical was completed on 21 September 2006 and it appears he was cleared for enlistment on 3 October 2006.  His DD 1966/4 contains two entries concerning a medical waiver.  One entry was dated              9 November 2006; however, the other entry was dated 16 October 2006.  As his DD Form 1966/6 shows his grade determination was completed on 18 October 2006, at least one medical waiver was considered prior to his grade determination being made.  In any event, there is insufficient evidence to show how the applicant was harmed if his grade determination had been made after any or all required medical waivers were approved.  His enlistment, not his grade determination, was dependent on his medical waiver(s) being approved.  Therefore, he is not entitled to have his records corrected to show that he enlisted in the grade of E-5.

4.  Army Regulation 600-200 stated that a Soldier should be removed from the  local recommended list if he is released from active duty for more than 24 hours. Evidence of record shows that the applicant was not on active duty for 17 years.  Therefore he was no longer eligible to remain on the local recommended list and compete for promotion to E-6.  

5.  The evidence of record also shows that the applicant would have been enlisted in accordance with Army Regulation 601-210, chapter 3 since he was a prior service applicant.  Therefore, his DD Form 1966/4 should be amended to show that he enlisted in accordance with Army Regulation 601-210, chapter 3-17 instead of paragraph 2-18.

6.  Item 18b of the applicant's DD Form 1966/1 incorrectly shows his active duty service date as "19850212."  Evidence of record shows that the applicant served 3 years and 18 days on his first active duty tour and that he served 4 years,        7 months, and 9 days on his second active duty tour.  Therefore, item 18b of his DD Form 1966/1 should be corrected to show his active duty service date as "19990710."

7.  The evidence of record incorrectly shows the applicant's pay entry date on his DD Form1966/1 as "19850212."  Evidence of record appears to show that the applicant completed 1 month and 20 days of inactive service prior to entering his first active duty tour on 7 April 1981, indicating he first entered the Army on 17 February 1981.  He was released from active duty on 25 April 1984 and was still on his MSO when he enlisted again on 12 February 1985.  He served until he was discharged on 20 September 1989.  Therefore, it appears he had a continuous military status (all of it creditable for pay) from 17 February1981 through 20 September 1989, or for 8 years, 7 months, and 4 days.  Therefore, item 18c of his DD Form 1966/1 records should be corrected to show his pay entry date as "19980803."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_________  _______  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the overall merits of this case are sufficient as a basis to partially amend the decision of the ABCMR set forth in Docket Number AR20080010247, dated 21 October 2008, by

   a.  amending Section VI of his DD Form 1966/4 to show that he enlisted in accordance with Army Regulation 601-210, chapter 3-17;
   
   b.  amending item 18b of his DD Form 1966/1 to show his active duty service date as 19990710; and
   
   c.  amending item 18c of his DD Form 1966/1 to show his pay entry date as 19980803, 
   
   d.  denying his request for promotion to E-6. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the grade determination to show that he was authorized to enlisted in the Regular Army as an E-5 or promoting him to E-6.



      __________ _  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)                                         AR20080017748



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         AR20080017748



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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