IN THE CASE OF:	  

		BOARD DATE:	      9 JULY 2009

		DOCKET NUMBER:  AR20080019454 


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 the debt resulting from his reduction to pay grade E-6 be dismissed. 

2.  The applicant states he was retired from the “reserve and agreed to come back in only if I was able to get Xray school and keep my E-7.”  He states when he attempted to get school dates he was told he would have “to drop rank to attend school” and that “with no other consideration I was forced to sign form under duress and to accomplish mission.”  He states his pay was dropped to E-6, however, before attending school it went back to E-7.  He states he let his unit administrator know and thought it meant “no school after all the hoopla.”

3.  The applicant states that while in school there were other E-7s and he questions “why”.  He states one of the reasons given was that as long as you had a medical BNOC (Basic Noncommissioned Officer Course) you could have E-7.  He states in the mean time he also received a warning notice to his “2Xcitizen account“ that he was grandfathered in on all schools and thus assumed all was well.  

4.  The applicant states that three times he had to take a reduction, one because of relocation, one because of downsizing after Desert Storm, and now to get a school.  He states he is sick of defending a government that finds a way to keep stealing from him and his family.


5.  In a request for assistance addressed to his congressional representative the applicant stated “the Army is trying to bill me for what they say is over payment.  I have made many attempts to resolve.  I have a signed contract to be paid as E-7 then after agreement of enlistment I was forced to sign a paper reducing my rank to attend school promised.   Then they sent me notification increasing pay saying I was grandfathered in.  Now they are trying to take back.”

6.  The applicant provides a partial copy of his August 2008 enlistment contact, a copy of a 2006 printout from the applicant’s automated record file on which he circle the statement “warning! Soldier has a Date of Rank that indicates he should be grandfathered for NCOES.  Confirm Date of Rank and update the appropriate MELMES Code.”  The applicant also submits a copy of his 2000 and 2007 E-7 promotion orders and a copy of a November 2007 LES (leave and earning statement) showing a “basic pay” debt originating in January 2005.  He also submits limited documents associated with his government debt.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant initially entered military service as a member of the United States Marine Corps in 1981 and served with that component until December 1985 when he enlisted in the United States Army Reserve.  By February 1988 he had been promoted to pay grade E-5 and in 1991 he was promoted to pay grade E-6.  His evaluation reports indicate he was performing duties as a legal noncommissioned officer at the time.

2.  According to an enlistment contract contained in the applicant’s Official Military Personnel File, on 24 September 1996 the applicant executed an enlistment contract to serve in the United States Army Reserve, in pay grade 
E-5, for a period of 6 years in specialty 51B (Carpentry and Masonry Specialist).  However, performance evaluation reports rendered between October 1997 and October 2000 all indicate the applicant was performing duties in specialty 51H (Construction Engineering Supervisor) in pay grade E-6.  The reports reflected his 1991 date of rank to pay grade E-6.

3.  On 1 December 2001 the applicant was promoted to pay grade E-7 in specialty 51H.

4.  On 7 August 2002 the applicant was notified that he had met eligibility requirements for retired pay at age 60 (twenty year letter).

5.  The applicant’s Official Military Personnel File contains a 22 March 2004 reenlistment contract indicating the applicant was reenlisting in the United States Army Reserve in pay grade E-7 for a period of 3 years.  On 6 April 2004 orders were issued at the 88th Regional Readiness Command in Minnesota voluntarily transferring the applicant from a Troop Program Unit to the United States Army Reserve Control Group (Reeinforcement) effective 22 March 2004, the same date the applicant executed his reenlistment contract.  Orders issued by the United States Army Human Resources Command in St. Louis on 13 April 2004 discharged the applicant from the United States Army Reserve under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).

6.  On 11 August 2004 the applicant executed a contract to return to military service with the United States Army Reserve for a period of 3 years in pay grade E-7.  The contract indicates he was enlisting as a prior service candidate for training and service in specialty 91W (Health Care Specialist).

7.  A DA Form 4187 (Personnel Action), provided by the applicant as part of his application to the Board, indicates that on 3 October 2004 he requested administrative reduction in grade/rank to meet eligibility requirements for training in specialty 91P (Radiology Specialist).  The form indicated the applicant was then serving in pay grade E-7 and that his date of rank for pay grade E-6 was in 1991, his original promotion date to E-6.  His commander recommended approval of the request on 3 November 2004.  The applicant’s Official Military Personnel File does not contain a copy of the DA Form 4187 or a copy of any reduction orders.

8.  However, the applicant’s file does contain a performance evaluation report for the period 11 August 2004 through 7 July 2005 which indicates that during that period the applicant performed duties as a paralegal (specialty 27D) in pay grade E-6 with a combat support hospital in Ohio.  The report was not rendered until August 2006 and on 5 January 2007 the applicant authenticated the accuracy of the administrative information, including his E-6 rank and 1991 date of rank, which was reflected on that report.

9.  The applicant’s file contains an academic evaluation report which indicates he attended the Radiology Specialty Course (91P) at Fort Sam Houston, Texas between 11 July 2005 and 23 June 2006.  That report also indicates the applicant was serving in pay grade E-6 at the time he attended the course.

10.  The applicant’s next performance evaluation report indicates he continued to perform duties as a paralegal in pay grade E-6 with the same combat support hospital in Ohio he was assigned to prior to attending the radiology course in Texas.  That performance evaluation report covered the period 24 June 2006 through 14 November 2006 and was a change of rater report.

11.  On 15 November 2006 the applicant was reassigned to another medical unit in Ohio.  The orders, which directed his reassignment were issued on
 4 November 2006 and indicated the applicant was serving in pay grade E-6.

12.  On 29 March 2007 the applicant was promoted to pay grade E-7 in specialty 27D (Paralegal).

13.  The applicant provided a copy of a USAR Form 28-R (Notice of Indebtedness) dated 24 August 2006, which was issued by the 256th Combat Support Hospital (the unit the applicant was assigned to at the time) informing the applicant he was indebted to the government for $11,318.03.  The form notes there were “attached documents” but the applicant did not provide those documents as part of his application to the Board.  The applicant indicated on the form that he disagreed with the validity of the debt and attached a written protest in response.  However, the applicant did not provide a copy of that written protest with his application. 

14.  The applicant’s leave and earnings statement dated 30 November 2007, provided by the applicant, indicates he was indebted to the government for payments associated with BAH (Basic Allowance for Housing) as early as August 2005, payments associated with his basic pay as early as January 2005, and payments associated with his SGLI (Service members Group Life Insurance) from July 2007.

15.  In October 2008 the applicant was informed by officials from the Defense Finance and Accounting Service (DFAS) that his account was in default and that they had not received his “agreed upon monthly payment….”  The debt was listed in the amount of $10,342.96.  The basis for the debt was not listed on the document.  His monthly payment was noted to be $287.67, with $575.34 past due.

16.  In support of the applicant’s request to the Board, he provided a copy of a March 2006 extract from his automated “Reserve Record” issued by the Army’s Human Resource Command via their automated personnel portal.  That document contains the statement “warning! Soldier has a Date of Rank that indicates he should be grandfathered for NCOES.  Confirm Date of Rank and update the appropriate MELMES Code.”  The applicant contends this statement supports his argument that he was “grand fathered in to E-7” although that same form shows his pay grade as E-6, not E-7.

17.  In the processing of this case an advisory opinion was obtained from the DFAS.  In that opinion DFAS indicated they have determined the debt is valid and/or resulted from the member’s reduction in grade from E-7 to E-6 for the period 7 January 2005 through 8 July 2006.  They noted the principal amount of the debt was $9,596.57, which should be reduced by $58.00 due a SGLI debt which was included in the grand total. The opinion noted the correct amount in question for his reduction in rank “remains standfast in the amount of $9,538.57.”  The opinion noted DFAS was not “in a position to make a favorable recommendation” on the applicant’s request to this Board.

18.  In response to the advisory opinion the applicant stated, in an undated memorandum that he was “some how [sic] discharged” even though he had signed a new contract.  He states that after numerous attempts he was told he would have to execute a new contract and stated that he “would come back in” if he could be retrained as an x-ray technician “without giving up rank.”  He states that after reenlisting he was told “this was not the case” and would have to “sign a reduction.”  He states he signed the paper “because now it has become a quest” and because he was “determined to accomplish this mission.”  He notes “in the mean time” his “pay goes back to E-6 before I go to school it goes back to E-7.”  The applicant states while he was at school he received an e-mail indicating that he “grandfather in and while in school there were other E-7 [sic] and I was informed that you only had to be E-6 if you didn’t attend medical 
BNOC [Basic Noncommissioned Officer Course].”  He states since he was grandfathered he thought “all was good” until he was informed after he had completed the course that he was indebted to the government.

19.  A review of the eligibility requirements for attendance at the Army’ Radiology Specialist Course published by the Army Medical Command notes the course is open to members of the Active Army in pay grade E-4 (non-promotable) and below, and to members of the National Guard and Army Reserve in pay grade 
E-6 and below.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates the applicant’s August 2004 enlistment contract permitted the applicant to return to military service in pay grade E-7 for training in 91W (Health Care Specialist) and not 91P (Radiology Specialist) as he contends.  It is unclear from documents available to the Board why the training was subsequently changed.  However, what is confirmed is that the applicant did in fact sign a request to be administratively reduced in grade to meet eligibility requirements for training in specialty 91P.

2.  There is no evidence, and the applicant has not provided any, which confirms he was forced, coerced or under any undue pressure to sign the reduction request.

3.  Although the applicant’s file does not contain any orders effecting the administrative reduction, there are sufficient documents available to the Board which confirms the applicant was performing in pay grade E-6 after his return to military service in August 2004.  Those documents include several performance evaluation reports, the academic evaluation report rendered upon completion of the Radiology Specialist Course, reassignment orders, his leave and earnings statement, and the March 2006 extract from his automated “Reserve Record” issued by the Army’s Human Resource Command via their automated personnel portal.

4.  The applicant’s contention that he believed he was “grand fathered” in the rank of E-7 based on the statement contained on his automated “Reserve Record” is without foundation.  Clearly that “warning” statement is associated with his being grand fathered for a training course associated with NCOES (noncommissioned officer education system) and not for retention of pay grade E-7 while attending radiology training.  The statement notes that after verification of his date of rank his military education level was to be updated.  The statement does not indicate that his rank should be updated to E-7.

5.  Clearly the applicant was aware he was or should have been serving in pay grade E-6 during the period in question as evidenced by the variety of documents, some of which he signed, which confirmed his pay grade was E-6.  The fact is he was receiving pay in the grade of E-7 erroneously and he was made aware of this fact as early as August 2006 when he was informed by his unit that he was indebted to the government.  It is noted that the date of the document informing him of his debt (August 2006) was issued barely 2 months after he completed the radiology course (June 2006) which served as the basis for his reduction in grade.

6.  Based on documents available to the Board it appears the applicant knew he was required to be reduced in grade in order to attend radiology training, that he was in fact reduced, and yet continued to receive pay in the grade of E-7 thus resulting in a debt to the government.  The applicant has not made a persuasive argument that his reenlistment contract was breached or that his debt is in error or unjust.

7.  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 the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080019454



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ABCMR Record of Proceedings (cont)                                         AR20080019454



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