IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090008826 


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 to her records to show she was promoted to the rank of specialist (SPC), pay grade E-4, and is entitled to back pay and allowances as a result of her promotion to pay grade E-4. 

2.  The applicant states, in effect, that she was promoted to pay grade E-4 during advanced individual training and never got paid.  She also states, in effect, she was issued a DA Form 4187 (Personnel Action) showing her promotion and the supporting regulation under which she was promoted.

3.  In support of her application, the applicant provides a DA Form 4187 and her DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she enlisted in the U.S. Army Reserve Delayed Entry Program in pay grade E-1 on 9 November 2006.  She enlisted in the Regular Army in pay grade E-1 on 20 November 2006 for 6 years. 
She completed training and was assigned military occupational specialty 92G (Food Service Specialist).

2.  There is no evidence the applicant enlisted under the provisions of the Army Civilian Acquired Skills Program (ACASP).

3.  There is no evidence to show the applicant was advanced to private (PV2), pay grade E-2, and private first class (PFC), pay grade E-3.

4.  The applicant submitted a copy of a DA Form 4187, dated 2 March 2007, showing her advancement/promotion to pay grade E-4 under the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 2-3, with an effective date and date of rank of 20 November 2006.  It also shows that she met the requirements in accordance with Army Regulation 601-201, paragraph 2-18.  The DA Form 4187 shows her rank as private (PVT), pay grade E-1.

5.  The applicant was reported absent without leave on 31 May 2007 and returned to duty on 27 June 2007.  The DA Forms 4187 show her rank as specialist (SPC), pay grade E-4.

6.  On 13 November 2007, the applicant was advised that she was indebted to the government for $388.50 for overpayment of rank.  The memorandum identifies the applicant as a PVT.

7.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 27 November 2007, shows a flagging action was initiated against the applicant for her elimination.  The DA Form 268 shows the applicant’s rank as PV2, pay grade E-2.

8.  A DA Form 4856 (Developmental Counseling Form), dated 30 November 2007, shows the applicant was counseled by her company commander concerning her Family Care Plan (FCP).  The applicant was advised that after their discussion [the company commander and the applicant] about her current child care situation, previous discussions about her marriage instability, and after reviewing the sworn statements (attached) the applicant provided, the company commander felt that it was in the best interest of the Army to initiate a 
"chapter 5-8."  The company commander stated that the applicant had agreed to waive the 30 days he had allotted for her to find an adequate FCP and the chapter would be initiated upon the end of the counseling session.  The DA Form 4856 shows the applicant’s rank as PV1, pay grade E-1.  On the same day, after consulting with counsel, the applicant acknowledged receipt of counseling and her agreement with the plan of action.

9.  A DA Form 4856, dated 3 December 2007, shows the applicant was counseled by her company commander concerning her debt avoidance pertaining to her indebtedness to the government for the overpayment of rank and a portion of her enlistment bonus she received for entering active service.  On the same day, the applicant acknowledged receipt of counseling.  The DA Form 4856 shows the applicant’s rank as PV1, pay grade E-1.

10.  A Debt Avoidance Notice, dated 4 December 2007, determined that the applicant was indebted to the government for an enlistment bonus recoupment, advanced pay, military pay debt (overpayment of rank), excess leave, and an Army Emergency Relief Loan Repayment.  The applicant acknowledged the audit and requested no action be taken at that time.

11.  On 23 January 2008, the applicant’s battalion commander recommended approval of the applicant’s discharge and recommended the issuance of an honorable discharge.

12.  On 29 January 2008, the appropriate separation authority approved the applicant's separation under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 6, and directed she be separated with an honorable discharge.

13.  The applicant was honorably discharged in pay grade E-1 on 27 February 2008 under the provisions of Army Regulation 635-200, paragraph 6-3b, for hardship.  She was credited with 1 year, 2 months, and 11 days of net active service.  The DD Form 214 she was issued at the time confirms she held the rank of PV1/E-1 and the effective date of her pay grade was 17 August 2007.

14.  Army Regulation 601-201 (Active and Reserve Components Enlistment Program), paragraph 2-17, specifies that persons qualified for ACASP may be given an advance in grade upon enlistment with civilian-acquired skills needed by the Army.  ACASP enlistees are authorized accelerated promotion under the provisions of Army Regulation 600-8-19.

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers.  Paragraph 2-3 specified that the Automatic Enlisted Advancement Report or a DA Form 4187 is the official instrument used by the commander to recommend Soldiers for promotion to SPC and below.  The promotion to PV2 requirement is 6 months' time in service (TIS) (may be waived at 4 months TIS), the promotion to PFC requirement is 12 months' TIS (may be waived at 6 months TIS), and the promotion to SPC requirement is 24 months' TIS (may be waived at 18 months TIS).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  The evidence of record shows she enlisted in the Regular Army on 20 November 2006 in pay grade E-1. 
She submitted a copy of a DD Form 4187, dated 2 March 2007, indicating she was advanced to SPC, pay grade E-4, with a date of rank and effective date of 20 November 2006 under the ACASP.  However, there is no evidence that she enlisted in the Regular Army under the provisions of the ACASP or that she was eligible/qualified for ACASP at the time of her enlistment.

2.  The evidence of record also shows that prior to her separation it was determined that she was indebted to the government for overpayment of her rank.  There is no evidence the applicant disputed the debt.  It appears the indebtedness resulted after a DA Form 4187 was erroneously issued changing her enlisted grade from pay grade E-1 to pay grade E-4.  Based on her indebtedness for overpayment of rank and pay grade during her separation processing and separation, it appears that once the error was found it was corrected.  A DA Form 268 in her military record identifies her as serving in the rank of PV2.  On all other documents located in her record, she is identified by the rank of PV1, pay grade E-1.  There is no evidence to show she was advanced or promoted to PV2, pay grade E-2, or PFC, pay grade E-3, during her period of active duty.

3.  The applicant has provided insufficient evidence to show she was properly advanced or promoted to pay grade E-4 and is now entitled to that promotion and back pay and allowances.  Therefore, there is no basis for granting her request.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant’s 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.



      _______ _  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)                                         AR20090008826



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ABCMR Record of Proceedings (cont)                                         AR20090008826



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