IN THE CASE OF:	  

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090015475 


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:

	a.  the difference in unpaid wages for the rank of private (PV1)/E-1 and private first class (PFC)/E-3 from 17 November 2006 through 21 February 2007; 

	b.  the difference in unpaid wages for the rank of PV1/E-1 and sergeant (SGT)/E-5 from 22 February through 3 August 2007; and

	c.  reimbursement of the difference between the monthly premiums of $100,000 and $400,000 of Servicemembers Group Life Insurance (SGLI) for the period of 30 March through 3 July 2007. 

2.  The applicant states that he was never paid at the correct enlisted pay grade although his enlistment contract clearly shows he enlisted as a PFC.  Additionally, upon contracting for the Army Reserve Officers' Training Corps (ROTC) program on 22 February 2007, he was entitled to be paid at the rank of SGT for all his Army National Guard (ARNG) training under the provisions of the Simultaneous Membership Program (SMP).  He was incorrectly paid at the rank of PVT/E-1 until the date of his appointment as a commissioned officer on 
4 August 2007.  He adds that with respect to the SGLI, he is unsure why he was overcharged monthly premiums for SGLI between 30 March and 3 July 2007. 



3.  The applicant provides in support of his application a copy of his DD Form 4 (Enlistment/Reenlistment Document) and allied documents, dated 17 November 2006; a copy of his SGLV Form 8286 Servicemembers Group Life Insurance Certificate), dated 30 March 2007; a copy of Orders 229-1026, issued by the Joint Forces Headquarters, NYARNG, on 26 October 2007; a copy of his DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Non-scholarship Cadet Contract), dated 15 December 2006; and copies of various Master Military Pay Accounts, dated on various dates in 2006 and 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant requests reimbursement of the difference between the monthly premiums of $100,000 and $400,000 of SGLI for the period of 30 March 2007 through 3 July 2007.  The applicant is required to exhaust all administrative remedies with respect to this issue.  He was notified by separate correspondence to address this issue with his servicing battalion S-1 and/or servicing finance office.  Accordingly, there will be no further discussion of this issue in this Record of Proceedings.

2.  The applicant's records show he attended Hofstra University, NY, while a member of the Army ROTC program from 1 September 2003 to 16 November 2006 and he completed 116 semester credit hours. 

3.  The applicant’s records show he initially enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 17 November 2006.  Item 8 (Agreements) of his DD Form 4 states "I am enlisting in the Army National Guard of the United States this date for 8 years and 00 weeks beginning in pay grade E-3."  However, items 18f (Accession Data-Pay Grade) and 18g (Accession Data-Date of Grade) of his DD Form 1966/1 (Record of Military Processing-Armed Forces of the United States) shows his pay grade as that of E-1 and date of grade as 
17 November 2006 (the date of his enlistment).  

4.  Section VI (Remarks) of the applicant's 1966/4 shows the entry "DEP and ACC Pay Grade Authority: 211l" indicating that the authority for the applicant's Delayed Entry Program (DEP) and Accession pay grade is paragraph 2-11(l) [sic] of Army Regulation 601-210 (Regular Army (RA) and ARNG Enlistment Program) (now known as the Active and Reserve Components Enlistment Program). 




5.  Section IV (Acknowledgement) of his Enlistment/Reenlistment Agreement (Guard Annex) shows he enlisted for assignment to Company D, 1st Battalion, 69th Infantry, Bay Shore, NY, and that he enlisted for the "Standard Training" program.  He agreed to attend basic combat and advanced individual training under the one station unit training program at Fort Benning, GA.

6.  On 29 November 2006, the Joint Force Headquarters, NYARNG, published Orders 333-1020 directing the applicant's attachment to the Recruiting and Retention Command, Watervliet, NY, effective 20 November 2006.  This order listed his rank as that of "PV1." 

7.  On 15 December 2006, the applicant executed an Army Senior ROTC Nonscholarship Cadet Contract in which he noted his enrollment at Hofstra University effective 22 February 2007.  He also executed an SMP Agreement in connection with this contract.

8.  On 4 August 2007, the applicant submitted an NGB Form 62E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States).  He indicated in Section IV (Chronological Statement of Active Federal Service) (which also includes ARNG service) that he served with Company D, 1st Battalion, 69th Infantry, in the grade of E-1 in military occupational specialty (MOS) 11B (Infantryman).  

9.  On 4 August 2007, the applicant was appointed as a second lieutenant in the NYARNG and executed an oath of office on the same date.

10.  On 26 October 2007, the Joint Force Headquarters, NYARNG, published three sets of orders concerning the applicant as follows:

	a.  Orders 299-1026 directed the applicant's promotion from PVT/E-1 to SGT/E-5 in MOSD 09R (SMP Cadet), effective 22 February 2007.

	b.  Orders 299-1027 directed the applicant's release from attachment to the  Recruiting and Retention Command, Watervliet, NY, effective 3 August 2007.

	c.  Orders 299-1028 directed the applicant's honorable discharge from the ARNG effective 3 August 2007, in the rank/grade of SGT/E-5 for the purpose of accepting an appointment as a commissioned officer in the NYARNG. 

11.  On 25 April 2008, the applicant entered active duty for training (ADT) and completed the Military Intelligence Basic Officer Leader Course.  He was honorably released from ADT on 13 August 2008 and was subsequently promoted to first lieutenant on 4 February 2009.  He has been assigned to the 218th Combat Support Battalion, Varnville, SC, since November 2009.

12.  The applicant provided copies of his MMPAs during the periods in question that clearly show he was paid as an E-1. 

13.  An advisory opinion was obtained on 24 December 2009 in the processing of this case.  An official at the Personnel Division, National Guard Bureau recommended that the applicant's case be forwarded to DFAS-Indianapolis for review and possible correction of his records if appropriate.

14.  The applicant was provided a copy of this advisory opinion on 4 January 2010, but he did not respond.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the RA the USAR and the ARNG for enlistment.  It also prescribes the appointment, reassignment, management, and mobilization of ROTC cadets under the SMP.  Paragraph 2-17 provides for a Soldier's enlistment pay grade and date of rank and states persons enlisting in the RA, USAR or ARNG without prior service (PS) will be enlisted as a PV1/E-1.  Exceptions are shown in paragraph 2–18.  Date of rank (DOR) for persons without PS will be as follows:  For RA, date of enlistment on active duty and for USAR and ARNG, the date of enlistment.  The authority for enlistment grade must be entered in the Remarks section of the DD Form 1966, to include a statement that the documents used to promote the Soldier have been verified (for example, pay grade E–3 authorized per paragraph 2–18f, by guidance counselor name and rank).

16.  Paragraph 2-18 provides for enlistment pay grades for personnel without prior service and states in pertinent part, that an applicant who has successfully completed 24 or more classroom semester hours (36 or more quarter hours) at an accredited degree granting college or university may enlist at any time at pay grade E-2.  An applicant who has successfully completed 48 or more classroom semester hours (72 or more quarter hours) (without a 4-year degree) at an accredited degree granting college or university may enlist at any time at pay grade E-3.  An applicant with an associate degree will be enlisted at pay grade 
E-3 without regard to the number of semester or quarter hours completed.  An applicant who has successfully completed a degree-producing college program of 4 years duration and has been awarded a bachelor degree or higher, may enlist at pay grade E-4. 

17.  National Guard Regulation 600-100 (Federal Recognition and Related Personnel action) provides for management of ARNG commissioned officers.  Paragraph 13-5 specifies the policies applicable for participants in the SMP and states in pertinent part that MOS 09R will be assigned when all provisions for acceptance into the SMP are fulfilled and is effective on the date the Senior ROTC contract is signed or the date of enlistment whichever is later.  Officer trainees will be advanced/promoted to E-5 if not already E-5.  The effective date of advancement for an officer trainee is the date the member is fully contracted in the ARNG and the ROTC Advanced Course as an SMP participant and assigned MOS 09R.  Officer trainees will be paid at the rate applicable to the grade and longevity attained, but not less than the grade of E-5. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should receive the difference in pay for the rank of PVT/E-1 and PFC/E-3 from 17 November 2006 through 21 February 2007.  He also contends he should receive the difference in pay for the rank of PVT/E-1 and SGT/E-5 from 22 February through 3 August 2007.  

2.  There are two problems with the applicant's enlistment contract:  His accession grade and the authority for this grade.  The evidence of record shows at the time of his enlistment, the applicant had completed 116 semester hours.  This would have qualified him to enlist in the rank of PFC/E-3.  His counselor correctly entered this grade on his DD Form 4 but accessed him in as a PVT/E-1. Additionally, his counselor listed an incorrect authority for this grade on his 
DD Form 1966/4.  

3.  The problem was compounded when the NYARNG failed to publish timely orders promoting him to SGT/E-5 when he executed his Senior ROTC contract and SMP Agreement on 22 February 2007.  His orders were published on         26 October 2007, some 5 months after the fact and some 2 months after he had been appointed as a commissioned officer.  Additionally, the standard name line on the orders listed his rank as that of PVT/E-1.  

4.  The applicant is entitled to correction of his DD Form 1966/1 to show his accession grade from PVT/E-1 to PFC/E-3 and correction of his DD Form 1966/4 to show the authority for this grade as Army Regulation 601-210, paragraph 2-18.  He is also entitled to correction of his promotion orders to show he was promoted from PFC/E-3 to SGT/E-5 instead of PV1/E-1 to SGT/E-5.  Further, he should receive back pay and allowances based on these corrections. 



BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  deleting the entry "E-1" from item 18f of his DD Form 1966/1, dated 17 November 2006, and adding the entry "E-3";  

	b.  deleting the entry "DEP and ACC Pay Grade Authority: 211l" from Section VI of his DD Form 1966/4 and adding the entry "Pay Grade E–3, authorized per paragraph 2–18f, Army Regulation 601-210"; 

	c.  amending the standard name line of Joint Force Headquarters, NYARNG Orders 299-1026, dated 26 October 2008, to show the applicant's rank as that of PFC; and

	d.  restoration of back pay and allowances as a result of these corrections. 



      _______ _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)                                         AR20090015475



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ABCMR Record of Proceedings (cont)                                         AR20090015475



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