IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090015542 


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 that her enlistment contract be corrected to show she was enlisted in the Army Civilian Acquired Skills Program (ACASP) for military occupational specialty (MOS) 91K (Biological Science Assistant) with an additional skill identifier (ASI) of P9.  She requests she be promoted to sergeant/pay grade E-5 as provided for under the ACASP for MOS 91K2OP9 and entitlement to all back pay and allowances.

2.  The applicant states her recruiter should have contacted the Chief, Health Services Branch to determine her eligibility for ACSAP and informed her of her eligibility status for ACASP.  She states that at least six Soldiers at the U.S. Army Research Institute of Environmental Medicine (USARIEM) were granted accelerated promotion because ACASP was included in their enlistment contracts and at least six appeals have now been filed and granted to include retroactive promotions.

3.  The applicant provides, in support of her application, copies of her memorandum submitted through the Commander, USARIEM; a statement from a sergeant; her college transcripts; her certificate for Medical Technologist (MT); a letter, dated 21 October 2008, from USARIEM; an SFS Form 29-E-R (Recommendation for Student Action); two pages from her application for enlistment; 3 pages from her enlistment contract; her orders, dated 2 June 2003, for transfer to the Medical Command Europe Replacement Detachment with further assignment to the U.S. Army Medical Department Activity (MEDDAC), Heidelberg, Germany; her orders to USARIEM; her Enlisted Record Brief (ERB), dated 
13 August 2009; and three pages from Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program).

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 military personnel records show she enlisted in the Regular Army in pay grade E-4 on 2 January 2003 for a period of 6 years, the U.S. Army Training Enlistment Program, MOS 91K (Medical Laboratory Specialist), and the U.S. Army Incentive Program, cash bonus of $13,000.00.  Her advanced enlistment pay grade was based on her college degree.  

3.  The applicant's transcripts show she received a Bachelor of Science Degree in Clinical Laboratory Sciences from Virginia Commonwealth University, Richmond, VA on 18 May 1996.  She was awarded a certificate as an MT from the American Society of Clinical Pathologists on 31 May 1996.

4.  According to the applicant's Security Clearance Application she was employed from 5 June 2000 to the date of enlistment as a secretary with Exxon Mobil Corporation.

5.  An SFS Form 29-E-R, dated 5 May 2003, shows the applicant was assigned the MOS of 91K and was not required to attend Phase I or Phase II of the 311-91K class based on her degree in Clinical Lab Sciences and her MT certification.

6.  On 3 July 2003, the applicant was assigned to (MEDDAC), Heidelberg, Germany with a duty MOS of 91K1O.

7.  On 16 August 2005, the applicant was assigned to the 31st Combat Support Hospital at Fort Bliss, TX with a duty MOS of 91K1O (now known as 68K1O).

8.  A letter, dated 21 October 2008, from Headquarters, U.S. Army Medical Department Center and School, Fort Sam Houston, TX, determined the applicant was fully qualified for the award of ASI P9.

9.  On 10 April 2009, the applicant was assigned to USARIEM with a duty MOS of 68K1OP9 and she continues to serve in that assignment.

10.  In the processing of this case a staff advisory opinion was obtained from the Recruiting Policy Branch of the Office of the Deputy Chief of Staff G-1.  That office recommended approval of the applicant’s request.  That office noted that the applicant possessed the credentials required for MOS 91K and should have entered under the ACASP in pay grade E-4 with later appointment to sergeant.  The G-1 also stated that she should have received accelerated promotion to E-5 upon completion of all required training, 8 weeks of proficiency training after arrival at the first duty station, and approval by the unit commander.  G-1 recommended administrative relief with a DOR and effective date of promotion to E-5 to coincide with the date she would have completed her proficiency training and the date the command recommended her promotion to E-5.  G-1 recommended her DOR and effective date of promotion be 15 September 2003, approximately 8 weeks after arrival at her first duty station.  The applicant concurred with the advisory opinion.

11.  Army Regulation 601-210, then in effect, provided policy and guidance for implementing the ACASP.  It stated, in pertinent part, that the ACASP attracted and used persons with civilian acquired skills required by the Army.  Persons qualified for the ACASP may have been given an advance in grade upon enlistment and may have been entitled to accelerated promotion based on the skill level and demonstrated duty performance if approved by the commander.  Table 7-1 of that regulation stated, in pertinent part, that persons enlisting in the ACASP for MOS 91K2OP9 must possess as a minimum a bachelor’s degree with specialization in biology, chemistry toxicology, physiology, organic chemistry, physics, microbiology, zoology, parasitology, pharmacology, biochemistry, or other related physical science or medical allied science.  They must also be certified as an MT and approved for enlistment under the ACASP.

12.  Army Regulation 601-210 further states that personnel approved for enlistment under this program will be enlisted in the pay grade of E-4 based on possession of a bachelor’s degree and may be advanced to the pay grade of E-5 contingent on the commander’s approval.  Applicants will be informed that such accelerated advancements are not automatic and are contingent on their skill level and demonstrated duty performance.  They must also be approved for enlistment in the MOS by the Chief Health Services Branch and must successfully complete the proficiency training required at the location of the assigned research project.

13.  Army Regulation 601-210, paragraph 7-11 states that accelerated promotion of persons enlisted under the ACASP 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. For Regular Army Soldiers, this includes 8 weeks of successful performance in the skill.  The accelerated grade will be awarded to qualified Soldiers without regard to time in grade, time in service, or promotion allocation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have been enlisted in the ACASP for MOS 91K2OP9 and she would have been eligible for an accelerated promotion to sergeant on 11 September 2003.  She contends that other Soldiers at USARIEM received these accelerated promotions and at least six appeals had been granted with retroactive promotions.

2.  While the applicant contends there is precedent in the granting of retroactive promotions in circumstances such as hers, the Board does not establish precedent.  As such, while the applicant contends previous cases have been approved, they have no bearing on whether her request should be approved.  Every case considered by the Board is judged on its own merits.

3.  The applicant enlisted for 6 years for training in MOS 91K and an enlistment bonus of $13,000.00.  Her initial expiration of term of enlistment (ETS) was 
1 January 2009.  She received training and was assigned the MOS of 91K and it is presumed she received her cash bonus of $13,000.00.  Therefore, the applicant received all the benefits for which she enlisted.

4.  In order for the applicant to be eligible for accelerated promotion she would have had to have completed 8 weeks of successful performance in the skill, been awarded the ASI of P9, and had approval of the unit commander.  There is no evidence of her having performed in MOS 91K2OP9 at her first unit of assignment or that she was recommended for promotion to sergeant by the unit commander.

5.  The applicant's ERB shows she was assigned duties in 68K (91K) during her assignment to the 31st Combat Support Hospital at Fort Bliss, TX and there is no record of her being recommended for promotion to sergeant.  Therefore, she did not meet the criteria for the accelerated promotion based on MOS 91K2OP9.

6.  The applicant was not determined to be fully qualified for award of ASI P9 until 21 October 2008.  She was assigned to USARIEM with a duty MOS of 68K1OP9 on 10 April 2009.  However, there is no evidence that she was recommended for promotion to sergeant.

7.  Notwithstanding the opinion provided by G1, in view of the above, there is insufficient evidence to change a completed contract wherein the applicant has received all the benefits for which she enlisted.   

8.  If the applicant can provide evidence to show her USARIEM commander would have recommended her for promotion to sergeant after 8 weeks of successful performance in the skill (or if she began to work in that skill in her previous assignment, after award of ASI P9, and her commander from that assignment will indicate that he would have recommended her for promotion) and if she can provide evidence to show she was still serving on her 2 January 2003 enlistment at the time her commander would have recommended her for promotion to sergeant under these conditions, she may apply to the Board for reconsideration.

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)                                         AR20090015542





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ABCMR Record of Proceedings (cont)                                         AR20090015542



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