IN THE CASE OF:	  

		BOARD DATE:	        21 January 2009

		DOCKET NUMBER:  AR20080018907 


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 correction of his records to show he enlisted in the Regular Army on 5 November 2008 in the rank/grade of sergeant first class (SFC)/E-7 vice staff sergeant (SSG)/E-6. 

2.  The applicant states that he submitted his enlistment request in July 2008 and was told by his recruiter that enlisting in the Regular Army would be no problem and that all he needed was an exception to policy letter from the U.S. Army Human Resources Command (HRC).  However, that letter never came and he ended up enlisting as an SSG/E6.  He adds that he has many friends who went through the same process and had no problem getting through at the rank they held before. 

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Self-authored statement, dated 25 November 2008.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 August 2008.

	c.  Orders 04-043-00081, issued by Headquarters, 100th Division (IT), Louisville, Kentucky, dated 12 February 2004. 


	d.  Orders 1030-01, issued by Headquarters, 3rd Brigade, 100th Division, Huntsville, Alabama, dated 20 May 2001.

	e.  DA Forms 1059 (Service School Academic Evaluation Report), dated 2 June 2006, 9 April 2004, 22 June 2002, 14 April 2002, 11 March 2001, and
25 July 1992.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 23 December 1987.  He subsequently entered active duty for training (ADT) on 4 January 1988, completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  He was released from ADT to the control of his USAR unit on 11 May 1988.

2.  The applicant’s records also show he executed a series of extensions and/or reenlistments in the USAR including a 6-year reenlistment on 23 December 1992, a 3-year reenlistment on 10 December 2000, and an indefinite reenlistment on 5 October 2003.  He was promoted to SSG on 10 May 2001 and SFC/E-7 on 12 February 2004.  

3.  On 19 August 2004, the applicant was ordered to active duty for contingency operations, temporary tour of active duty (COTTAD) and for contingency operations, active duty operational support (COADOS) in support of Operation Enduring Freedom.  He completed 4 years and 8 days of active duty and was honorably released from active duty to the control of his USAR unit on 26 August 2008.  

4.  On 24 January 2008, HRC-St. Louis, Missouri (MO), issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This notification informed the applicant that he has completed the required years of qualifying service and is eligible for retired pay upon application at age 60. 

5.  On 16 October 2008, by email addressed to the applicant’s recruiter, Headquarters, U.S. Army Recruiting Command (USAREC), Fort Knox, Kentucky, indicated that the request for grade determination for the purpose of the applicant’s enlistment in the Regular Army was approved in the grade of E-6, provided the applicant was otherwise qualified.  The email indicated that there were no vacancies in the applicant’s MOS in the rank of SFC.


6.  On 4 November 2008, the applicant was honorably discharged from the USAR.

7.  On 5 November 2008, the applicant enlisted in the Regular Army for a period of 3 years and 2 weeks in pay grade E-6.  He authenticated this form in Item 18a (Signature of Enlistee/Reenlistee) by placing his signature in the appropriate block.

8.  In his self-authored statement, dated 23 November 2008, the applicant states that he held the rank/grade of SFC/E-7 for 4 years and was assured by his recruiter that he was accepted in the Regular Army as an SFC.  He adds that he knows five other friends who enlisted in the Regular Army and kept their higher grade.  He further adds that he regrets signing his enlistment contract in the rank/grade of SSG/E-6.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the USAR, and the Army National Guard (ARNG) for enlistment.  Paragraph 3-17 governs enlistment pay grade and terms of enlistment for Regular Army applicants with prior military service.  It states, in pertinent part, that if the Soldier is a former member of the Active Component/Reserve Component (AC/RC) service, then:

	a.  If applicant was last separated from any component or is a current member of an RC in grades E–1 through E–3, with not more than 5 years active Federal service (AFS) and enlists within 48 months from the date of separation, the enlistment grade will be the same grade held at time of separation.  If enlisting more than 48 months from completion of military service obligation, reduce one grade, but will not go below the grade of PV2 unless separated as PV1.

	b.  If applicant was last separated from any Component or is a current member of an RC in grade E–4 with not more than 7 years AFS and enlists within 48 months from the date of separation, the enlistment grade will be the same grade held at time of separation. If enlisting more than 48 months from completion of military service obligation, reduce one grade.

	c.  Applicants in grade E–5 and above must submit a formal request to the Commanding General (CG), USAREC to determine assignment eligibility:

		(1)  If a vacancy exists in former PMOS and the applicant was last separated from any component in the grade of E–5 and enlists within 48 months following separation, or is a current member of a RC; the enlistment grade will be E–5 (must not have more than 12 years AFS).

		(2)  If a vacancy does not exist in former PMOS and the applicant was last separated from any component in the grade of E–5 and enlists within 48 months following separation, or is a current member of an RC, the enlistment grade will be E–5; however, applicant must accept retraining in the MOS provided by CG, USAREC and not have more than 12 years AFS.

		(3)  Applicants in the grade of E–6 and above will have eligibility determined by CG, USAREC.

		(4)  RC enlisted Soldiers of the USAR and the ARNG who have attained 18 years active service in accordance with Title 10, U.S. Code, section 12686, and desire to serve in the RA, may be accessed by CG, USAREC according to guidance.  Furthermore, grade determinations will not be conducted on RC Soldiers retained on active duty under the provisions of Title 10, U.S. Code, section 12686.  These Soldiers will be retained in the grade held at date of enlistment into the Active Army, unless properly promoted in accordance with applicable Army promotion board procedures.

		(5)  Mobilized RC enlisted Soldiers of the USAR and ARNG who have less than 18 years active service, and desire to serve in the RA, may be processed onto active duty, jointly by CG, HRC and CG, USAREC according to current military personnel (MILPER) message and business rules governing this process.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been allowed to enlist in the Regular Army as an SFC instead of an SSG.

2.  The applicant’s contention that other Soldiers in a similar situation were allowed to enlist and keep their higher grade may be true; however, the enlistment grade depends on several factors, such as the MOS, the number of years in service, available vacancies in the higher grade and MOS.  Each case is considered on its own merits. 

3.  The evidence of record shows that the applicant is a former member of the RC and held a grade above that of E-6 at the time he elected to enlist in the Regular Army; therefore, a grade determination was required and was submitted 
by the applicant’s recruiter to Headquarters, USAREC.  The evidence of record further shows that at the time the applicant’s request for enlistment was approved, there were no vacancies in the applicant’s MOS in the rank of SFC. 

4.  There is no evidence that the applicant was mislead or misinformed by his recruiter.  It appears that all requirements of the regulation were met in the applicant’s enlistment process and the applicant’s options were explained to him. Accordingly, he executed a valid enlistment contract on 5 November 2008.  

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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.


															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)                                         AR20080018907



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018907



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1