IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090000624 


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, correction of his records to show he entered the U.S. Army Reserve (USAR) in the grade of E-5 and payment of all back-pay.

2.  The applicant states, in effect, he enlisted in the USAR under the Army Civilian Acquired Skills Program (ACASP) and he completed three and one half years of college, which supports the fact that he met the educational requirement.  However, he entered the USAR as an E-4 and is still serving in the grade of E-4.

3.  The applicant provides copies of a Certificate and Acknowledgement, United States Army Reserve Service Requirements and Methods of Fulfillment (Reserves Annex), dated 4 November 2006; online DA Pamphlet 611-21 (SmartBook), Military Occupational Specialty (MOS) 91V (Respiratory Specialist) Report, printed 12 October 2006; St. Petersburg College, St. Petersburg, Florida, Official Academic Transcript, dated 28 August 2006; National Board for Respiratory Care, Certified Respiratory Therapist (CRT) Card, Number
261 93 ####, with an expiration date of 30 September 2009; State of Florida, Department of Health, Division of Medical Quality Assurance, CRT License, Number TT 124##, AC # 2543###; dated 12 May 2007; Department of Veterans Affairs (VA), Bay Pines VA Healthcare System, Bay Pines, Florida, letter, undated; Supervisory Reference Letter, dated 2 December 2008; and Supervisor Recommendation Form, dated 2 December 2008.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the USAR for a period of 8 years on 5 November 1987 and entered active duty in the Regular Army for a period of 4 years on 5 November 1987.  Upon completion of basic combat training and advanced individual training, he was awarded primary MOS (PMOS) 91D (Operating Room Specialist).  The applicant was honorably discharged on 4 November 1991 under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Separations), chapter 4 (Separation for Expiration of Service Obligation), based on his expiration term of service.

2.  The applicant’s military personnel records contain a DD Form 4 Series (Enlistment/Reenlistment Document - Armed Forces of the United States) with an enlistment date of 4 November 2006.  Section B (Agreements), block 8, contains the statement “I am enlisting/reenlisting in the United States Army Reserve this date for 3 years and 00 weeks beginning in the pay grade E-4.  The additional details of my enlistment/reenlistment are in Section C and Annex(es).”  The Certificate and Acknowledgement, United States Army Reserve Service Requirements and Methods of Fulfillment (Reserves Annex), dated 4 November 2006, shows the applicant enlisted under the ACASP and was assured of attending the school course for MOS 68V2O (Respiratory Specialist).  Section IV (Service Obligation), paragraph 3, in pertinent part, contains the statement "[t]he following programs and/or incentives are my authorized entitlements:  a.  I certify that I have read or have viewed the Job Description for the MOS I am enlisting for and further acknowledge that I understand the general nature of the training I will receive."  The applicant and Army counselor each placed their signature on this document.

3.  The applicant’s military personnel records contain a copy of Headquarters, Army Reserve Medical Command, Pinellas Park, Florida, Orders 07-066-00041, dated 7 March 2007.  These orders show the applicant’s rank was SPC (specialist/pay grade E-4), his PMOS of 68D1O (Operating Room Specialist) was withdrawn and he was awarded PMOS 68V1O and secondary MOS (SMOS) 68D1O effective 6 April 2007.

4.  The applicant’s military personnel records contain a copy of Headquarters, Army Reserve Medical Command, Pinellas Park, Florida, Orders 08-087-00027, dated 27 March 2008.  These orders show the applicant was honorably discharged from the USAR, in the grade of SPC (E-4), effective 25 April 2008.

5.  In support of his application the applicant provides the following documents.

   a.  Certificate and Acknowledgement, United States Army Reserve Service Requirements and Methods of Fulfillment (Reserves Annex), dated 4 November 2006.  This document was previously introduced and considered in this Record of Proceedings.
   
   b.  The online DA Pamphlet 611-21 (SmartBook), MOS 91V (Respiratory Specialist) Report, printed 12 October 2006.  This document shows that MOS 91V was an ACASP designated MOS and describes the major duties, physical demands rating, and qualifications for initial award of the MOS.  This document shows the formal training requirements as, in pertinent part, completion of the MOS 91V course conducted under the auspices of the Army Medical Department Center and School or meet the ACASP criteria of this pamphlet and (a) have graduated from an accredited program or a program holding a Letter of Review from the Joint Review Committee for Respiratory Therapy Education or be certified as a respiratory therapist by the National Board for Respiratory Care; (b) proficiency training must be performed under the supervision of a civilian Registered/Certified respiratory therapist or a noncommissioned officer qualified in MOS 91V; and (c) personnel enrolled in an approved program, having satisfactory academic standings, with reasonable assurance of successfully completing the course, may be enlisted in the Delayed Entry Program or USAR when they are within 6 months of graduation.  Individuals must successfully complete the respiratory therapist course, receive State license, and satisfy training requirements of the ACASP to be qualified for the award of MOS Code 91V2O and accelerated appointment to the grade sergeant (SGT)/pay grade E-5.  Failure to satisfy any of these requirements will result in MOS reclassification.  (Note:  MOS Code 91V was subsequently designated MOS Code 68V.)

   c.  St. Petersburg College, St. Petersburg, Florida, Official Academic Transcript, dated 28 August 2006, that shows the applicant attended the college from 10 January 2000 through 25 July 2003; earned a total of 88 credits, and met the general education requirement for an Associate in Science in Respiratory Care on 25 July 2003 with honors.
   
   d.  National Board for Respiratory Care, CRT Card, Number 261 93 ####, with an expiration date of 30 September 2009, that shows the applicant was credentialed on 13 September 2004.
   
   e.  State of Florida, Department of Health, Division of Medical Quality Assurance, CRT License, Number TT 124##, AC # 2543###; dated 12 May 2007.  This document shows the applicant met all requirements of the laws and rules of the State of Florida and was issued a CRT license with an expiration date of 31 May 2009.
   
   f.  Department of VA, Bay Pines VA Healthcare System, Bay Pines, Florida, letter, undated, written by Doctor Saifu D____, Staff Internist/Pulmonologist, who states he has known the applicant for the last 6 years and also attests to the applicant’s work ethic and skills as a respiratory therapist.
   
   g.  Supervisory Reference Letter and Supervisor Recommendation Form, dated 2 December 2008, written by Mrs. Sonya S. M_____, Registered Respiratory Therapist, Chief, Cardiopulmonary Diagnostics Department of VA, Bay Pines VA Medical Center (VAMC), Bay Pines, Florida.  These document show the applicant was employed at Bay Pines VAMC from January 2000 to the present; she rated the applicant satisfactory in all categories of evaluation; and highly recommends the applicant for the position he is applying for.

6.  In the processing of this case, an advisory opinion was requested from the Chief, Recruiting Policy Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1 (DCS, G-1), The Pentagon, Washington, DC.  On
3 March 2009, an advisory opinion was provided confirming that the applicant enlisted in the USAR on 4 November 2006 for a period of 3 years under the ACASP for MOS 68V with an entry grade of E-4.  The advisory official stated:

   a.  In May 2005, Army policy governing the ACASP was changed to state “applicants enlisting under the ACASP will be enlisted in pay grade SPC (E-4), if they meet the criteria in DA Pamphlet 611-21.  No later advanced promotion is authorized unless enlisting in the United States Army Special Bands.”
   
   b.  Although an administrative oversight in DA Pamphlet 611-21 does make reference to an accelerated promotion to E-5 if training requirements are satisfied, the applicant’s enlistment contract and annexes shows no promise of accelerated promotion to grade E-5.

   c.  Based on the review and the administrative error in ACASP requirements outlined in DA Pamphlet 611-21 regarding accelerated promotion to E-5 for MOS 68V, the advisory official recommends administrative relief for the applicant by promoting the applicant to grade E-5 in accordance with the date he completed proficiency training and the commander recommended award of his MOS.

7.  On 24 October 2007, the applicant was provided a copy of the DCS, G-1, advisory opinion in order to have the opportunity to respond.  On 4 March 2009, the applicant provided his concurrence with the advisory opinion.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), with an effective date of 16 June 2005 and in effect at the time, prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 7 (Regular Army and Reserve Component Civilian Acquired Skills Program) provides policy and guidance for implementing the ACASP.  ACASP attracts and uses persons with civilian-acquired skills required by the Army and persons qualified for ACASP may be given an advance in grade upon enlistment.

   a.  Paragraph 7-11 (Determination of qualifications and enlistment grades) provides that ACASP applicants must present valid evidence of completion of required civilian training to enlistment authorities.  This evidence may include certificates, transcripts, diplomas, union cards, or employment records showing the period of actual work experience, training received, degree of proficiency attained, and a summary of duties and training in a civilian-acquired skill.  Training may include successful completion of union, industry, or Government-recognized training or apprenticeship programs.  Certificates and diplomas submitted by applicants must bear the original seal of the institution awarding the document, or be documented as true copies.
   
       (1)  Persons who meet training and work experience requirements in accordance with DA Pamphlet 611-21 and satisfy all other enlistment criteria will be enlisted in pay grade E-4.
   
       (2)  Classification interviewers at reception battalions will continue to review individual qualifications.  They will identify Soldiers not recruited under the ACASP but who should be processed under Army Regulation 612-201 (Initial Entry/Prior Service Trainee Support) as it applies to Soldiers with civilian-acquired skills.  Soldiers found qualified under ACASP will be referred to the U.S. Army Recruiting Command liaison.

   b.  Paragraph 7-12 (Award of military occupational specialty, enlistment grade, and accelerated promotion) provides, in pertinent part, that applicants enlisting under the ACASP will be enlisted in pay grade SPC (E-4), if they meet the criteria in DA Pamphlet 611-21.  No later advanced promotion is authorized unless enlisting in the United States Army Special Bands.  This paragraph also provides that for applicants enlisting in the United States Army Special Bands, promotion to the accelerated grade and award of the MOS authorized by the enlistment agreement will be made either with approval of the unit commander or by the training commander for active Army personnel, after successful completion of all training required by the enlistment program selected in paragraph 7-6.

   c.  Paragraph 7-6 (Accelerated promotions) provides, in pertinent part, ACASP enlistees assigned to one of the four special bands (listed in paragraph 7-3) are authorized accelerated promotion.

9.  Army Regulation 601-280 (Army Retention Program), Chapter 11 (Forms, Records, and Reports) provides, in pertinent part, that the DD Form 4 must be preserved in its original state should it ever be needed in a legal proceeding.  Therefore, the DD Form 4 will not be amended by "pen and ink" correction. Instead, a DA Form 4187 (Personnel Action) or memorandum will be added to the Soldier's file showing the correction(s) to the enlistment contract.  A copy of the approved correction with appropriate enclosures will be forwarded to the Commander, U.S. Army Human Resources Command, 9700 Page Boulevard,
St Louis, Missouri  63132-5200.

10.  Title 10, United States Code, section 1552, the law which provides for the Board, states, “The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he entered the USAR in the grade of E-5 and payment of all back-pay because he enlisted under the ACASP and satisfied the training requirements for promotion.

2.  Records show that Army policy governing the ACASP was changed effective 16 June 2005 to allow applicants enlisting under the ACASP to be enlisted in pay grade SPC (E-4), if they met the criteria in DA Pamphlet 611-21.  However, this Army policy also stated that no later advanced promotion was authorized unless enlisting in the United States Army Special Bands.

3.  The evidence of record shows the applicant enlisted in the USAR in the grade of E-4 under the ACASP on 4 November 2006 with an assurance of attending the school course for MOS 68V2O (Respiratory Specialist).  Thus, records show the applicant was enlisted in the USAR in the correct grade (i.e., SPC/E-4) under the ACASP.  Therefore, the applicant is not entitled to correction of his records to show he enlisted in the USAR in the grade of SGT (E-5).

4.  The evidence of record shows that the online DA Pamphlet 611-21, printed on 12 October 2006, indicated that MOS 91V (i.e., 68V) was identified as an ACASP MOS and that individuals must successfully complete the respiratory therapist course, receive State license, and satisfy training requirements of the ACASP to be qualified for the award of MOS 91V2O (i.e., MOS 68V2O) and accelerated appointment to the grade of SGT (E-5).
   
5.  The applicant's enlistment contract and annexes contain no promise of accelerated promotion to E-5 if training requirements are satisfied.

   a.  The Reserve Annex to the applicant's DD Form 4 shows the applicant was assured of attending the school course for MOS 68V2O and contained the instruction "[t]he following programs and/or incentives are my authorized entitlements:  a.  I certify that I have read or have viewed the Job Description for the MOS I am enlisting for and further acknowledge that I understand the general nature of the training I will receive."  Thus, it is reasonable to conclude that the applicant reviewed the provisions in the online DA Pamphlet 611-21, printed on 12 October 2006, pertaining to the requirements for award of MOS 68V20 and accelerated appointment to the grade of SGT (E-5). 

   b.  The evidence of record shows the applicant met the general education requirement for an Associate in Science in Respiratory Care on 25 July 2003; was credentialed as a CRT on 13 September 2004 by the National Board for Respiratory Care; and he was issued a CRT license by the State of Florida on
12 May 2007 with an expiration date of 31 May 2009.
   
	c.  The evidence of record also shows the applicant satisfied the training requirements of the ACASP to be qualified for award of MOS 68V2O when he was awarded PMOS 68V1O effective 6 April 2007.

6.  Based on the available evidence, it is clear that an administrative oversight occurred with respect to the online DA Pamphlet 611-21, SmartBook and MOS 91V, in particular, in that it was not updated by Army officials to reflect the corresponding change implemented by Army Regulation 601-201, effective
16 June 2005.  Thus, it appears the applicant was misled to believe that his enlistment in the USAR under the ACASP in MOS 68D would result in his accelerated promotion to SGT (E-5) upon satisfactory completion of the training requirements. In view of the foregoing, it would be appropriate to correct the applicant’s military records to show the terms of his enlistment contract were amended to include the sentence, “Accelerated promotion to grade E-5 and award of PMOS 68V2O is authorized upon satisfactory completion of the required training.”

7.  As a result of this correction, and as a matter of justice, it would then be appropriate to correct the applicant's records by showing he was awarded PMOS 68D2O effective 6 April 2007, promoted to the grade of SGT (E-5) effective and with a date of rank of 6 April 2007, and authorized payment of all back pay due as a result of this correction.

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 evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  amending the Certificate and Acknowledgement, United States Army Reserve Service Requirements and Methods of Fulfillment (Reserves Annex), dated 4 November 2006, in Section IV (Service Obligation), paragraph 3, by adding to subparagraph a the sentence, “Accelerated promotion to grade E-5 and award of PMOS 68V2O is authorized upon satisfactory completion of the required training.”; and

	b.  promoting the applicant to the grade of sergeant (SGT)/pay grade E-5 effective and with a date of rank of 6 April 2007; withdrawing PMOS 68V1O and SMOS 68D1O; and awarding PMOS 68V2O and SMOS 68D2O effective 6 April 2007. 

2.  As a result of the foregoing correction, the Defense Finance and Accounting Service shall be notified to provide the applicant payment of all back pay due as a result of this correction of records based on his promotion to the grade of SGT (E-5) effective 6 April 2007 and through the date of his discharge from the USAR on 25 April 2008.



3.  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 entering the USAR in the grade of E-5 and payment of back pay to the date of his enlistment.  




      _______ _   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)                                         AR20090000624



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ABCMR Record of Proceedings (cont)                                         AR20090000624



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