IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090002350 


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 reinstatement to the rank of sergeant first class (SFC)/pay grade E-7, which he held as a member of the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, that his recruiter failed to submit his documents requesting enlistment in the Regular Army (RA) on 14 January 2008, when the RA strength for his military occupational specialty (MOS) 25U (Signal Support Systems Specialist) was at 102 percent and he could have received favorable consideration.  He also states that he was shocked when he contacted the U.S.  Army Human Resources Command (USAHRC) in May 2008 and discovered that his recruiter had not sent any documentation to them.

3.  The applicant continues that he submitted the documents through the recruiting station again the following day.  He states that by this time, his MOS was at 103 percent strength within the RA and his request was denied due to the lack of SFC vacancies for MOS 25U.  The applicant also states that according to the Senior Promotion Board results, dated March 2008, 55 staff sergeants (SSG)/pay grade E-6 were selected for promotion to SFC.  Therefore, he contends there were 55 projected SFC vacancies for that fiscal year in January 2008.

4.  The applicant states that in accordance with the guidance in MILPER [Military Personnel] Message Number 05-143, paragraph 3d "Grade determination is not required for mobilized Reserve Component Soldiers.  These Soldiers will enlist 

into the RA at their current rank."  Paragraph 3e provides "If the applicant's current MOS is determined by HRC to be 'over strength' in the RA, the Soldier will be given the opportunity to reclassify into an 'under strength' or 'critical' MOS at the time of transfer.  The Soldier will be notified of this prior to his or her transfer into the RA."

5.  The applicant continues that he was instructed to demobilize prior to enlistment.  He contends that due to the recruiter's lack of timely action, he had a 30 day break of active duty service upon demobilization which contributed to the reduction in grade.  The applicant states that in accordance with the guidance in USAREC [U.S. Army Recruiting Command] Message 07-074, paragraph 7a(3a) "If Soldier's current MOS is over strength in the RA, the Soldier will be given the opportunity to reclassify into a priority MOS at the time of transfer."  Paragraph 7a(5) provides "The Army Recruiting Command will enlist the Soldier into the Delayed Status at the earliest convenience.  DO NOT WAIT UNTIL SEPARATION DATE."

6.  The applicant concludes that his grade determination in conjunction with enlistment in the RA was unjust due to the untimely actions of his recruiter and requests that his grade determination be corrected in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program), chapter 3, paragraph 10a, 4(c), b(6), and MILPER Message 05-143.

7.  The applicant provides a self-authored memorandum, a copy of his request for conditional release from the USAR for the purpose of immediate enlistment in the RA, a timeline of the actions pertaining to his case, MILPER Message number 05-143, USAREC Message 07-074, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his enlistment documentation as documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the USAR under the provisions of the Delayed Entry Program (DEP) on 16 January 1991.  He was discharged from the USAR DEP on 13 February 1991 and he enlisted in the Regular Army (RA) on 14 February 1991.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded MOS 31U (Signal Support Systems Specialist).  At the time of his discharge on 14 May 2000, the applicant held the rank of sergeant (SGT)/pay grade E-5.  


2.  The applicant enlisted in the USAR effective 15 May 2000 and continued his career in the Army.  Headquarters, 108th Division (Institutional Training), Charlotte, North Carolina, Orders 06-057-00012, dated 26 February 2006, show the applicant was promoted from SSG to SFC in MOS 25U with an effective date and date of rank of 1 March 2006.

3.  USAHRC, Alexandria, Virginia, Orders A-03-707188, dated 27 March 2007, show the applicant was voluntarily ordered to active duty in the rank of SFC on 27 May 2007 in support of Operation Enduring Freedom (OEF) for a period of 11 months and 29 days.  

4.  On 11 January 2008, while serving on active duty, the applicant submitted a DA Form 368 requesting conditional release from the USAR for the purpose of enlisting in the RA.  His request was recommended for approval on 11 January 2008 and it was approved on 14 January 2008.  The conditional release was valid until 6 June 2008.

5.  U.S. Army HRC, Alexandria, Virginia, Memorandum, dated 15 May 2008, shows the applicant's application for enlistment into the RA was not favorably considered.  The reason cited for disapproval was that there were no authorized vacancies in the grade of E-7 for MOS 25U.  The memorandum also informed the applicant that if he still desired to enter the RA, he should contact his local recruiter upon demobilization.  Accordingly, the Recruiting Command would process the enlistment packet to include a grade determination and advise the applicant of the grade and MOS he would be authorized upon entry into the RA.

6.  Headquarters, 3rd Battalion, 34th Infantry Regiment, Fort Jackson, South Carolina, Memorandum, dated 23 May 2008, shows the applicant acknowledged receipt of notification that there were currently no vacancies in his MOS and grade.  The applicant stated, in effect, that he was appealing the decision based upon USAREC Message 07-074, paragraph 7a(3a) which provided that "If Soldier's current MOS is over strength in the RA, the Soldier will be given the opportunity to reclassify into a priority MOS at the time of transfer."  The applicant contended that his recruiter had failed to bring this provision to his attention and failed to inform him that his request had not been honored.  He concluded by requesting an exception to policy in order to remain on active duty until he was afforded an opportunity to reclassify at his current pay grade of E-7.

7.  The applicant's DD Form 214 for the period of 27 May "2005" [sic] through
25 May 2008 shows he was released from active duty on 25 May 2008, in the rank and grade of SFC/E-7 and MOS 25U.

8.  Section B (Agreements) of DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 25 June 2008, shows the applicant 
enlisted in the Regular Army for a period of 3 years and 9 weeks in pay grade
E-6.  Section D (Certification and Acceptance) of this form shows the applicant certified that he had carefully read this document, including the partial statement of existing U.S. laws in section C and how they may affect this agreement.  He also acknowledged that any questions he had were explained to his satisfaction.  He further acknowledged that he fully understood that only those agreements in section B and section C of this document or recorded in the attached annex(es) would be honored.  He concluded by acknowledging that he understood that any other promises or guarantees made to him by anyone that were not set forward in section B or the attached annex(es) were not effective and would not be honored.  The applicant authenticated this document with his signature on 25 June 2008 and his authentication was witnessed by both a senior noncommissioned officer and a commissioned officer.

9.  Section 1 (Acknowledgement) of a DA Form 3286 (Annex B) (Statement for Enlistment - U.S. Army Enlistment Program), dated 25 June 2008, shows the applicant acknowledged that in connection with his enlistment in the RA, he was agreeing to attend training for MOS 88M (Motor Transport Operator).  Section 15 of this form shows the applicant acknowledged that he had read and understood that the statements on this form were intended to constitute all promises and guarantees whatsoever concerning his enlistment and that no other promise or representation not annexed to his enlistment contract was valid or would be honored.  He stated that he had not been promised anything other than what was written on this form and thereby waived any claim based upon any promise or representation not annexed in his contract.  He concluded that all additional documentation and/or information necessary for his MOS and/or options had been provided to him in accordance with the provisions of Army Regulation
601-210.

10.  Item 18 (Accession Data) of a DD Form 1966/1 (Record of Military Processing - Armed Forces of the U.S.), dated 25 June 2008, shows the applicant was accessed into the RA in the rank and pay grade of SSG/E-6 with a date of rank of 25 June 2008 and MOS 88M.  Section VI (Remarks) of this document contains the statement "My date of rank will be adjusted at my first duty station IAW [in accordance with] Army Regulation 600-20 [Army Command Policy]."  The applicant authenticated this document with his signature on 25 June 2008.



11.  Department of Defense, Military Entrance Processing Station (MEPS), Fort Jackson, South Carolina, Orders 8177002, dated 25 June 2008, in pertinent part, show the applicant enlisted for a period of three years in the rank of SSG and MOS 88M.

12.  During the processing of this case, an advisory opinion was rendered by the Chief of the Force Alignment Division of HRC on 19 March 2009.  The advisory official stated that following a thorough review of the applicant's enlistment contract, dated 25 June 2008, no relief was recommended for his request for reinstatement of rank.  The advisory official noted that the applicant applied for participation in the Reserve Component (RC) to Active Component (AC) Program; however, he was not favorably considered.  The applicant submitted an inquiry previously stating that the recruiter, who processed his request to participate in the RC to AC program, was negligent in ensuring his packet was processed in a timely manner.  The Force Alignment Division completed a review of the strengths for January 2008, and it was further determined that the strengths did not favorably support the applicant for RC to AC at that time.  This determination placed the applicant under the guidelines of Army Regulation
601-210, paragraph 3-17.  The advisory official determined the applicant received the correct grade determination upon entry into the RA.

13.  On 26 March 2009, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  The applicant did not response to the advisory opinion.

14.  MILPER Message Number 05-143, dated 2 June 2005, provided the following implementing instructions for Enlistment of Mobilized USAR or Army National Guard of the United States (ARNGUS) Soldiers into the RA.  The message provided the following procedural guidance:

	a.  RC Soldiers, with less than 18 years of service, could apply to transfer from the RC to RA anytime within 6 months of their projected demobilization or release from AD date, to include at the demobilization station.  Additionally, Soldiers who had out processed from the demobilization site but were granted leave en route to their parent unit or who were on terminal leave could also apply for enlistment in the RA under this policy prior to the end date of their leave, as they had not been released from AD.

	b.  Soldiers who applied at the mobilization station would be placed on ADSW-AC (Active Duty for Special Work-Active Component) orders (formerly TTAD [Temporary Tour of Active Duty]) extending them on AD until the application was processed.

	c.  If an RC Soldier was the recipient of an enlistment/reenlistment incentive, and was in the process of fulfilling the service obligation required by the incentive, he or she would be notified that the unearned incentives may be subject to statutory recoupment on a pro-rata basis upon enlistment into the RA.

	d.  Grade determination was not required for mobilized RC Soldiers.  These Soldiers would enlist into the RA at their current rank.

   e.  If the applicant's current MOS was determined by the USAHRC to be "over strength" in the RA, the Soldier would be given the opportunity to reclassify into an "under strength" or "critical" MOS at the time of transfer.  The Soldier would be notified of this prior to their transfer into the RA.

15.  USAREC Message Number 07-074, dated 24 January 2007, provided the implementing instructions for Enlistment of Mobilized USAR or ARNGUS Soldiers into the RA.  In pertinent part, the message provided the following program qualifications:

	a.  Applicants had to meet eligibility requirements outlined in Army Regulation 601-210, chapter 3, except as modified by this message.

	b.  USAHRC would determine if an authorized vacancy existed in the Soldier's current MOS.

		(1)  If the Soldier's current MOS was over strength in the RA, the Soldier would be given the opportunity to reclassify into a priority MOS at the time of transfer.

		(2)  If the Soldier's current MOS had a vacancy in the RA, the Soldier would be assigned to the needs of the Army.

	c.  If the Soldier was favorably considered, processing instructions would be issued and scanned into the Enlisted Reassignment Management system.  The Soldier would remain with their current deployed unit until it redeployed to the demobilization station, at which time HRC would inform the Soldier of the date to report to USAREC for enlistment into the RA.

	d.  USAREC would enlist the Soldier into the Delayed Status at the earliest convenience.  "DO NOT WAIT UNTIL SEPARATION DATE."

	e.  USAREC would enlist the Soldier one day after separation from active duty to prevent a break in service and the Soldier would then proceed to training or new duty location as outlined in the processing instructions provided by HRC.
	f.  The promotion status of Soldiers who enlisted into the RA under this policy was not transferable to the RA; therefore, upon execution of their RA contract, RC Soldiers on a promotion list would be administratively removed from the list.

16.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Paragraph 3-17 pertains to enlistment pay grade and term of enlistment for RA applicants with prior military service.  Paragraph 3-17b(3c) states that applicants in the pay grade of E-6 and above will have eligibility determined by the Commanding General of USAREC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be reinstated to the rank of SFC/
E-7, which he held as a member of the USAR, was carefully considered.

2.  The evidence of record shows that while the applicant was serving on active duty in the USAR in the rank and pay grade of SFC/E-7 he saw a potential opportunity to enlist in the RA and continue his career on active duty.  He submitted a request to enlist in the rank of SFC/E-7 and MOS 25U.  This request was denied because there were no authorized vacancies in the grade of E-7 for MOS 25U at the time.  The same memorandum that informed the applicant that his request was denied also informed him that if he still desired to enter the RA, he should contact his local recruiter upon demobilization.  Accordingly, the Recruiting Command would process the enlistment packet to include a grade determination and advise the applicant of the grade and MOS he would be authorized upon entry into the RA.

3.  The applicant submitted an appeal to the denial citing his belief that had his recruiter processed his request in a timely fashion, he may have received favorable consideration.  He also contended that he should have been informed that his request was denied in a more timely manner and afforded an opportunity to reclassify to a shortage MOS prior to being released from active duty.  He also contends that since 55 Soldiers were selected for promotion to SFC, there must have been 55 vacancies.

4.  Evidence shows that following the denial of his RC to AC Program request, the applicant voluntarily enlisted in the RA for a period of 3 years and 9 weeks beginning in the rank and grade of SSG/E-6 and MOS 88M.  Evidence also shows the applicant acknowledged and certified his understanding of all the terms and conditions of his enlistment and that he had not been promised anything that was not included in writing in his enlistment contract.

5.  The Chief, Force Alignment Division, recommended that the applicant's request be denied.  He noted that the applicant applied for participation in the RC 
to AC Program and he was denied.  He also noted that a review of the strengths for January 2008 further determined that the strengths did not support the applicant favorably for RC to AC at that time.  In light of this fact, the applicant was no longer eligible to apply for enlistment under the provisions of MILPER Message Number 05-143.  Accordingly, he was considered for enlistment under the guidelines of Army Regulation 601-210, paragraph 3-17.  The Chief, Force Alignment Division, determined the applicant received the correct grade determination upon entry into the RA.

6.  Based on the foregoing information, the applicant is not entitled to reinstatement to the rank of SFC/E-7.

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 did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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.



      __________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)                                         AR20090002350



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ABCMR Record of Proceedings (cont)                                         AR20090002350



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