IN THE CASE OF:	  

		BOARD DATE:	      19 MAY 2009

		DOCKET NUMBER:  AR20090000301 


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 his enlistment contract be corrected by changing his rank/pay grade to specialist (SPC)/E-4.

2.  The applicant states, in effect, that he should have been enlisted in the grade of E-4.  He adds that he researched this information and found his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

3.  The applicant provides a copy of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 1 September 1992; NGB Form 22 (Report of Separation and Record of Service), dated 25 May 1993; and enlistment documents.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 
has determined it is in the interest of justice to excuse the applicant’s failure to 

timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's NGB Form 22 shows that he enlisted in the Kentucky Army National Guard (KYARNG) on 31 December 1990 and was honorably discharged on 25 May 1993 for the purpose of enlistment in the Regular Army (RA).  His pay grade was listed as SPC/E-4 with a date of rank of 15 December 1992.  His net service was listed as 2 years, 4 month, and 25 days.  This form also lists his Initial Active Duty Training (IADT) period from 8 June 1992 to 1 September 1992.

3.  The applicant's DD Form 214 with an ending date of 1 September 1992 shows that he entered active duty this period on 8 June 1992 and was released from active duty on 1 September 1992 after completion of training for award of military occupational specialty (MOS) 91B (Medical Specialist).  The applicant's pay grade at the time of release from active duty for training was private first class (PFC)/E3.  

4.  Section B (Agreements), item 8 of the applicant's DD Form 4/1 (Enlistment/
Reenlistment Document, Armed Forces of the United States) shows that he enlisted in the Army in the pay grade of E-3 on 26 May 1993.  Section D (Certification and Acceptance), item 13b (Signature of Enlistee/Reenlistee) contains the applicant's signature certifying that he carefully read his enlistment contract and "fully understand that only those agreements in Section B of this document or recorded on the attached annex(es) will be honored.  Any other promises or guarantees made to me by anyone are written below."  The applicant placed an "X" in the "NONE" box, along with his initials.

5.  As part of his enlistment documents, the applicant provided a copy of his 
DA Form 4187 (Personnel Action) that shows he requested enlistment into the RA [from the KYARNG].  This form shows his grade as E-4 and his MOS as 91B. The applicant signed this form on 23 March 1993 and the commander approved his request on 5 April 1993. 

6.  The applicant also submitted a copy of a U.S. Army Recruiting Command (USAREC) Form 978 (Continuation of Remarks (DA Form 4187) Regular Army Enlistment Delay for Applicants with Prior Service or an Existing Military Service Obligation) and a DD Form 1966/3.  These documents show that the applicant enlisted on 26 May 1993 in the authorized pay grade of E-3 in accordance with USAREC Message Number 92-085.  

7.  The documents provided by the applicant, to include a copy of his DD Form 214, are contained in his Official Military Personnel File (OMPF) as part of his enlistment contract.
8.  The applicant's DD Form 214 with an ending date of 24 May 2001 shows the applicant entered active service this period on 26 May 1993.  This DD Form 214 also shows his total prior active service as 5 months and his total prior inactive service as 1 year, 11 months, and 25 days.

9.  The referenced USAREC Message Number 92-085 is not available for the Board's review.  Additionally, a copy of the message could not be located after numerous calls to the Headquarters, U.S. Army Recruiting Command located at Fort Knox, Kentucky. 

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) chapter 3, prescribes basic eligibility criteria for prior-service applicants for enlistment in the RA and U.S. Army Reserve (USAR).  Table 3-3 provides enlistment pay grade for applicants with prior military service who are enlisting into the RA.  Rule "A" states that if an applicant has taken part in an IADT program and has been awarded an MOS and enlists within 24 months from the date released from active duty (IADT), the applicant's pay grade will be the grade held at the time of release from IADT, but not less than grade E-2. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was released from IADT on
1 September 1992 in the rank/grade of PFC/E3.  He enlisted in the RA on
26 May 1993 in the rank/grade of PFC/E3, which is consistent with the regulatory guidance contained in Army Regulation 601-210.  There is no indication that the recruiting official was not aware of the applicant's prior service status with the ARNG at the time of the applicant's enlistment.  In fact, a copy of the applicant's DD Form 214 and 4187 requesting enlistment in the Regular Army are contained in his OMPF as part of his enlistment documents.

2.  There is no evidence and the applicant has not provided any to show that he should have been enlisted in the rank/grade of SPC/E4.  Therefore, the presumption of regularity must be applied.

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.  

4.  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)                                         AR20090000301



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ABCMR Record of Proceedings (cont)                                         AR20090000301



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