IN THE CASE OF:	  

		BOARD DATE:	  16 October 2009

		DOCKET NUMBER:  AR20090016211 


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 reconsideration of his previous request to correct his record to show that he was enlisted in pay grade E-5 on 7 March 2007, and that following such correction he be promoted to pay grade E-6.  In the alternative, he asks that if "for reasons unknown" to him the Board finds that he was not fully qualified to enlist as an E-5 under Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), "chapter 3-17" [sic], dated 16 May 2005, that a full explanation be given in the Board's record of proceedings and that he be promoted to the grade of E-5 "at the earliest possible date (4 months) time in grade (May 2007)" and then promoted to "the grade of E-6 at its earliest possible date (5 months later) time in grade (October 2007) with all back pay and allowances."

2.  The applicant stated in correspondence to his Congressional representative that the Board did not previously fully consider his arguments and, in fact, excluded from consideration one of the most important documents he submitted to the Board.  He notes he submitted a document authored by his chain of command, dated 29 October 2008, which supported his request to have his records corrected, although it was not even mentioned as evidence in the Board's record of proceedings.  He noted that he provided a copy of his DD Form 2808 (Report of Medical Examination) as evidence that his medical waiver was not completed until 20 December 2006, after the grade determination was made, and yet the Board noted that he "did not submit any evidence which verified this claim nor does his record contain any evidence that corroborated his statement."  Finally he informed his Congressional representative that while he specifically outlined the regulatory requirements for the submission of a "memorandum" with his grade determination action, the Board stated that he "did not submit or clearly identify what memorandum he meant."

3.  In follow-up correspondence to the Board, dated 24 September 2009, the applicant stated that the recruiting command's failure "to ensure that [he] was enlisted and that [his] grade was determined under the proper regulation, has caused [him] great harm.  The regulation that they used to enlist [him] and to perform [his] grade determination was AR [Army Regulation] 601-210, 
chapter 2-18 Enlistment pay grades for personnel without prior service."  The applicant states, in effect, that the Board acknowledged this error on 30 April 2009 when it amended his DD Form 1966 (Record of Military Processing - Armed Forces of the United States) to show that he was enlisted in accordance with Army Regulation 601-210, paragraph 3-17, and yet did this without consideration that his enlistment grade was determined by this same regulation.

4.  The applicant states that he was eligible for "reenlistment in the grade of E-5" and cites the memorandum authored by his legal assistance attorney in March 2008.  He states that it is his contention that he should have enlisted as an E-5 as he "was fully qualified as per the existing regulation at the time."

5.  He states his chain of command has been aware of the mistakes in his enlistment documents right from day one, and is perplexed as to why the Army Board for Correction of Military Records (ABCMR) has not corrected the mistakes and promoted him sooner.  He notes that on 18 December 2007 his then battalion commander, a lieutenant colonel, signed a DA Form 4187 (Personnel Action) recommending approval of the requested correction.  This was followed up by a letter signed by his entire chain of command on 29 October 2008 and multiple calls in early 2009 by his current company commander to the staff of the ABCMR.  He states his current commander has requested promotion and correction of his records but was told the ABCMR would not speak with him.  The applicant states he knows this to be true as he was present for all the telephone calls.

6.  In a 25 September 2009 letter to the Board, provided by the applicant in response to telephonic communication with a member of the Army Review Board Agency's staff, the applicant reemphasized the required procedures for the proper processing of an enlistment grade determination.  He again provided an extract from the governing regulation (Army Regulation 601-210) and noted that medical and moral waivers and the previously mentioned "memorandum" were required as part of the grade determination.  He expresses his displeasure with the entire grade determination process and notes the "gross failure to adhere to proper procedure" during his enlistment processing.  He also expresses his continued displeasure with the Board's handling of his appeal and states that he has "previously and formally requested a personal appearance before the board in an effort to eliminate confusion, repetitive questions, lost or misplaced documents, and to expedite the correction process."  He states that although he was never formally notified, he must "assume this request for a personal appearance was denied."

7.  In his most recent correspondence dated 25 September 2009 he again notes that he was enlisted under the wrong paragraph of Army Regulation 601-210, that his chain of command has recognized this, and that as a result of the continued mishandling of his case he has missed multiple opportunities for promotion to both E-5 and E-6.  He argues that he is being punished for things that are clearly not his fault.  He states that the Board should not forget that during his prior service he held the grade of E-5, was recommended for E-6, and filled an E-6 position as an advanced individual training instructor with all the required Noncommissioned Officer Education System courses completed in the upper 90 percent of his classes.

8.  The applicant also continues to note that his date initially entered military service (DIEMS) is incorrect.

9.  Included with correspondence from the applicant's Congressional representative, the applicant submitted information concerning the requirement for submission of a memorandum with his grade determination action as outlined in Army Regulation 601-210, paragraph 4-22, dated 16 May 2005; a copy of his DD Form 2808 which he indicated showed that his medical waiver was not approved until 20 December 2006; and a copy of the 29 October 2008 statement from his chain of command supporting his request for correction of his military records.

10.  Included with his 24 September 2009 statement to the Board, the applicant submitted a copy of the 6 March 2008 memorandum from his legal assistance attorney which was addressed to the Chief, Enlisted Promotions, at the Army's Human Resources Command (HRC) requesting his promotion to E-5, a copy of the 18 December 2007 DA Form 4187 signed by his then battalion commander supporting the corrective action, another copy of the 29 October 2008 memorandum from his chain of command, and page 3 of his DD Form 2808 which contained the date stamp of 20 December 2006 in block 86 (waiver granted).  He also submits a copy of paragraph 3-17 from Army Regulation 601-210 which outlines the enlistment pay grade and terms of enlistment for Regular Army applicants with prior military service and a copy of his enlisted record brief dated 24 September 2009 on which he has annotated that "awards dates prior to 1985 all incorrect," that his duty title is "coxswain" vice seaman and his duty military occupational specialty (MOS) is 88K2O vice 88K1O, and in Section X (Remarks) that his correct DIEMS date is "19810427" and his overseas deployment dates are "19832402-19840425."

11.  The applicant also submits a copy of his September 2009 leave and earnings statement (LES) on which he noted that his DIEMS date should be "810407" vice "850212."

12.  There were no additional documents received with his 25 September 2009 letter to the Board.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080010247 on 21 October 2008 and Docket Number AR20080017748 on 30 April 2009.

2.  In the applicant's original request to the Board, which was considered and denied on 21 October 2008, he essentially addressed three issues:

	a.  His promotion to E-6 with all back pay and allowances and argued that relief was warranted because a proper grade determination was not done.  He noted that had a proper grade determination been accomplished he would have been enlisted in pay grade E-5 and would have definitely "been an E-6 by now."  He stated that Army Regulation 601-210 required a set procedure for the processing of grade determinations and specifically noted that grade determination actions required that all medical or moral waivers be completed prior to submission and that a memorandum "prepared per AR 25-50" be included with the request for grade determination.  He argued that the date on his medical waiver was 20 December 2006, that his "alleged grade determination" was completed on 18 October 2006, and that the "memorandum prepared per AR 25-50" was never done.  (Note:  Army Regulation 25-50 (Preparing and Managing Correspondence) outlines the policies and procedures for preparing and managing Army correspondence.)

	b.  Block 18b (Active Duty Service Date) and block 18c (Pay Date) of his DD Form 1966/1 were incorrect.

	c.  His DD Form 1966/4 reflected a regulation and paragraph, but did not reflect the other information required by regulation and as such, was not in the "proper format from the regulation."

3.  In the initial application to the Board, the proceedings noted the applicant provided a copy of his DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), a copy of his DD Form 1966/1, and several documents from his official military personnel file (OMPF) in support of his request.

4.  During the Board's original consideration of the applicant's request it was essentially concluded that the applicant was not entitled to another grade determination, that he had not provided evidence that an error had occurred in the preparation of his DD Form 1966/1 or his DD Form 1966/4, and that the "evidence shows that a proper grade determination was submitted and approved prior to his enlistment."  The Board denied relief.

5.  In November 2008 the applicant initiated a request for reconsideration of his original application.  In his request for reconsideration he argued that his case was misrepresented to the Board.  He argued that "by changing my original words from the (DD149) in several paragraphs throughout the 'Record of proceedings' thus changing the entire meaning of my request" and that "by not requesting my full and complete errors or injustice" as the basis for his contention that his case was misrepresented.

6.  In the applicant's request for reconsideration he also cited "new evidence and supporting documents" as the basis for reconsideration.  Included in that "new evidence and supporting documents" the applicant noted his DD Form 2808 from his original medical records showing the date of "December 20th 2006" as the date medical waivers were received; his DD Form 1966/4 showing a date of "20061109" as the date medical waivers were received; and his DD Form 1966/6 showing the date of his grade determination as "20061018."  He argued that these three documents "indisputably show that the grade determination was processed illegally because the grade determination cannot be done before all medical and moral waivers."

7.  The applicant argued again that the "memorandum prepared per AR 25-50 and a copy of the current MEPS [military entrance processing station] physical exam" that were required under the provisions of Army Regulation 601-210, paragraph 4-22, dated 16 May 2005, were not submitted to obtain his grade determination.  He also stated that the grade determination did not have his complete job history, his educational experience, or background investigation in addition to the required documents which were needed to do a proper grade determination.

8.  The applicant also again cited the errors in his enlistment contract associated with incorrect entries on his DD Form 1966/1 (blocks 18b and 18c) and DD Form 1966/4 (incorrect paragraph and missing required entries).  He provided evidence which he felt supported what the correct entries should have been including an LES showing an "incorrect DIEMS date."  The applicant indicated that he was also providing "the same portfolio that I provided by counsel" which he noted consisted of six sections.  

   Section #1 contains supporting evidence for fact number one "the grade determination if done is illegal"
   
   Section #2 contains supporting evidence for "there are multiple errors in my enlistment documents"
   
   Section #3 contains his item by item critique of the Record of Proceedings for AR20080010247, dated 21 October 2008
   
   Section #4  is the original Record of Proceedings
   
   Section #5 is his 22 August 2008 rebuttal letter to the Board's advisory opinion and a copy of that advisory opinion
   
   Section #6  is his original DD Form 149

9.  In his request for reconsideration he also stated he was enclosing a letter of support from his "entire chain of command" which was prepared after they reviewed the Board's original decision, his enlistment contract, and his grade determination.  He concluded that because his grade determination was processed prematurely without the required documents, it resulted in "short changing" him a proper, fair, and legal grade determination.  He also noted that "without question" there were mistakes on his enlistment document including the "incorrect dates, the wrong regulatory paragraph 2-18, and required information missing or incorrect."

10.  On 30 April 2009 the Board reconsidered the applicant's request.  The Record of Proceedings made no mention of the letter of support from the applicant's chain of command and noted that the issue of the "memorandum" would not be addressed because the applicant "did not submit or clearly identify what memorandum he means."  Ultimately, the Board concluded that it would be appropriate to amend the applicant's DD Form 1966/4 to show the correct paragraph of Army Regulation 601-210 that he enlisted under (paragraph 3-17 vice 2-18) and to amend the entries in blocks 18b and 18c of his DD Form 1966/1.

11.  The Board continued to deny the applicant's petition to change his enlistment grade, citing among other things, that the applicant's contention that his medical waiver was approved on 20 December 2006, after the grade determination decision, could not be corroborated by any evidence submitted by the applicant.  The Board also noted that questions concerning the applicant's DIEMS date needed to be addressed via administrative channels prior to having the Board act on that issue.

12.  In the applicant's 17 August 2009 letter to his Congressional representative he argued that the Board had not considered all the facts of his case and that evidence was ignored or excluded.  He cited three examples from the Board's April 2009 deliberation as examples.  Those issues included the Board's failure to address the "memorandum" that should have been submitted with his grade determination packet, that the Board failed to see that his claim that his grade determination was completed prior to approval of his medical waiver on 20 December 2006 was supported by the copy of his DD Form 2808 he submitted, and that the Board never even mentioned the supporting statement from his chain of command.  He concluded to his Congressional representative that the Board "admitted that the regulation that I enlisted under and my grade was determined from was incorrect, but yet they failed to re-determine my grade under the appropriate regulation or compensate me for my losses of their admitted mistakes."

13.  In preparation for reconsidering the applicant's case this time, he was contacted by a member of the Army Review Board Agency's staff to determine if the "memorandum" he referred to in his various appeals to the Board was, in fact, the memorandum mentioned in Army Regulation 601-210 as part of a grade determination packet, to clarify what document indicated his medical waiver was completed on 20 December 2006, and to see if there was any additional evidence he wished the Board to consider.

14.  In response to that inquiry the applicant submitted the 24 September 2009 and 25 September 2009 letters noted in "The Applicant's Request, Statement, and Evidence" section cited above.

15.  Records available to the Board indicate the applicant served an initial period of active duty in the Regular Army between April 1981 and April 1984 in MOS 52C (Utilities Equipment Repairman), attaining the rank of specialist/E-4.  He served a second tour of active duty in the Regular Army between February 1985 and September 1989 in MOS 52C and attained the rank of sergeant/E-5.  In March 1987, 2 years prior to his 1989 discharge, he appeared before an enlisted promotion board and attained promotion list status for pay grade E-6 in his MOS of 52C.  He was not promoted to pay grade E-6 prior to his September 1989 discharge.  His performance evaluation report for the period ending in November 1988, Part IIIb (Duty MOSC) showed the applicant was performing duties as an instructor/writer in duty MOS 52C3H, but Part IIIc (Daily Duties and Scope) showed he was actually an instructor for the Quartermaster/Chemical Equipment Repairer Course, MOS 63J.

16.  On 21 September 2006 the applicant signed his DD Form 2807-1 (Report of Medical History) on which he noted that he had suffered from broken bones and a ruptured hernia; that he was currently in good health; had been treated in an emergency room; had been a patient in a hospital; had or was advised to have surgery; had consulted or been treated within the past 5 years; had been discharged from the military; and that he had applied for, received, or was pending a pension or compensation for a disability or injury.  The examining physician made comments in section 30a (Comments) of the form relative to the responses the applicant indicated on that same form and then signed the form on 21 September 2006, the same date the applicant signed the form.

17.  That same day, 21 September 2006, the applicant underwent a medical examination for the purpose of "enlistment" in the Army.  The examining physician noted on page 3 of the DD Form 2808 that the applicant was "not qualified for service" and that a physical profile of "0-1-1-2-0-1" was appropriate as of 21 September 2006.  That same document contains a subsequent date of 3 October 2006 noting a physical profile of "3-1-1-2-2-1."  Block 76 (significant or disqualifying defects) notes three items as disqualifying, but only reflects the examiner's initial.  There are no entries in the "Waiver Received" blocks on this copy of the form.  The DD Form 2808 contained the notation in block 78 (Recommendations – further specialist examination indicated) of "waiver recommended."  The examining physician authenticated the document.  There is also a signature of a reviewing officer/approving authority and the signature of a third individual who reviewed the form for "completeness and accuracy."  Block 86 (waiver granted) does not contain any information other than a hand written date of "20061003."  The only dates reflected anywhere on this copy of the DD Form 2808 are 21 September 2006, 26 September 2006, and 3 October 2006.  A copy of this form is contained in the applicant's OMPF.

18.  On 25 September 2006, just 4 days after undergoing his physical examination, the applicant authored a letter addressed "to whom it may concern" in which he requested a grade determination for the grade of E-5.  In that letter the applicant noted that he was recommended for promotion to E-6, had served in an E-6 slot for over 2 years, and attended both the Primary Leadership Development Course (PLDC) and Basic Noncommissioned Officer Course (BNCOC).  He noted that in the civilian sector he was a teacher for the National Association of Home Builders and the Home Builders Institute; taught for over 4 years the fundamentals of Home Building, Construction, and Community Planning; and was a Supervising Project Consultant for the State of Florida Department of Corrections and the Department of Management Services.  He stated his position required him to "know every aspect of building, renovating, and maintaining the large number of structures and buildings that the State of Florida owns."  He concluded that he was ready to reenlistment and to complete his career path by retiring in the United States Army.

19.  Included with the applicant's 24 September 2009 letter to the Board was another copy of page 3 of his DD Form 2808.  This copy, which the applicant cited in previous applications to the Board, but which does not appear to have been seen by the Board, reflects the applicant's signature, which was not on the form contained in his OMPF.  It also reflects a fourth disqualifying condition in block 76 (Overweight), that waivers were received on 20 December 2006 for the previous three listed disqualifying conditions, and that the word "recommended" had been lined through in block 78 and the notation "granted" entered after the word "waiver."  This copy also contains entries in block 80 (Medical Inspection Date) between November 2006 and March 2007 which were not on the previous copy of the DD Form 2808 as well as additional entries in block 79 (MEPS Workload).  Block 80 (Waiver Granted) reflects a check in the "yes" block, a printed name, and a date stamp of "Dec 20 2006" which were not on the form contained in the applicant's OMPF.

20.  According to information contained in Section VI (Remarks) of the applicant's DD Form 1966/4, a medical waiver was approved by the command surgeon on 16 October 2006 and again on 9 November 2006.  The 9 November 2006 waiver reflects the same name as that which is hand written in block 86 on the applicant's copy of his DD Form 2808 (W____ W____).

21.  Section VI (Remarks Continuation) of his DD Form 1966 contains the following information:

Exception Information:
An exception approved by Chief RMB J____ D____, 20061018 – Control #4d00b6fb805d6bf2 -
Comments:  applicant was discharged from RA in 1989 as E-5 with over 7 years of service, PLDC & BNCOC graduate, reflected on 214.  I applicant was discharged from RA in 1989 as E-5 with over 7 years of service, PLDC & BNCOC graduate, reflected on 214.  I SURE I  As an exception to Retention Control Point, request for grade determination for the purpose of enlistment in the Regular Army is approved in the grade of E-4, provided applicant is otherwise qualified.  Enlistment will not exceed 4 years.  This determination is valid for 180 days from the date approved/Must retrain; not MOS qualified.

RENO Information:
A RENO approved by BATTALION XO MAJ J____ G. G____, 20070104 -Control # 4d00b6fb8062685a -
Comments:  Wants to change MOS

22.  On 7 March 2007, after more than a 17-year break in service, the applicant enlisted in the Regular Army in pay grade E-4 for a period of 4 years in MOS 88K, Watercraft Operator.

23.  Chapter 3 of Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) establishes the policies and procedures for enlistment in the Regular Army and the Army Reserve for prior-service applicants.  It notes that prior-service applicants must meet eligibility criteria outlined in this chapter and must also meet requirements of options for which they are enlisting.

24.  Paragraph 3-7 of Army Regulation 601-210 states, in pertinent part, that prior-service applicants who have been awarded an MOS are eligible for Regular Army enlistment if they meet the retention physical fitness standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and Army Regulation 600-9 (The Army Weight Control Program).  It also states that applicants must meet all other requirements for specific option or MOS for which enlisting and must meet the entry-level physical profile serial code (PULHES) in accordance with DA Pamphlet 611-21 (Military Occupational Classification and Structure), chapter 10.

25.  Paragraph 3-16 of Army Regulation 601-210 states, in pertinent part, that pay grade on enlistment into the Regular Army will be determined under paragraph 3-17.  It also notes, however, that "as required, grade determinations…will have all medical or moral waivers completed prior to submission.  It states that all requests for grade determination in grades specialist/E-4 and below with no more than 7 years of total active service and enlistment at any time after separation will be completed in accordance with paragraph 3-17.  The term of enlistment, when added to previous active Federal service, may not exceed 10 years.  The Commanding General (CG), HRC, may consider waivers.

26.  That same paragraph states that all prior-service Army applicants must enlist for their former MOS unless otherwise directed.

27.  Paragraph 3-17 of Army Regulation 601-210 notes, in pertinent part, that if last separated from the Regular Army in the grade of SGT and enlisting after 24 months from completion of military service, the enlistment grade will be determined by the CG, HRC.  For all applicants in this category, a formal electronic request must be submitted to have enlistment grade and eligibility determined.  In April 2004 the authority to adjudicate grade determinations was delegated to the CG, U.S. Army Recruiting Command (USAREC).

28.  Paragraph 4-5 states that any applicant with or without prior military service whom the MEPS physician finds not to meet the medical standards for enlistment into the Regular Army will require a waiver.  The USAREC Command Surgeon will act on behalf of the CG, USAREC, for all medical waivers.

29.  Paragraph 4-22 states that any applicant who does not meet enlistment grade criteria will be required to have his or her grade determined for enlistment.  The paragraph states that the following documentation is required to submit a grade determination:

   a.  a memorandum prepared per Army Regulation 25-50;

   b.  a DD Form 214, DD Form 215 from last enlisted/officer active service, DD Form 220, or National Guard Bureau Form 22;
   
   c.  a DD Form 1966 and Standard Form 86;

   d.  a copy of applicant's U.S. Military Entrance Processing Command Form 680-3A-E or other authorized document that clearly displays applicant’s Armed Services Vocational Aptitude Battery date and results; and

   e.  a copy of current MEPS physical examination or other authorized document that clearly displays applicant's current height and weight, date of physical examination, and physical profile, if applicable.
   
30.  Paragraph 4-3 states that unless indicated otherwise in the regulation, requests for waivers and other actions that require approval will be forwarded to the appropriate electronic mail address and that every effort will be made to ensure capture of electronic record of waiver starting at the recruiting station level.

31.  In the applicant's 24 September 2009 correspondence to the Board, he included a copy of a DA Form 4187 signed by his commander recommending approval of the applicant's request for a grade determination under Army Regulation 601-210, paragraph 3-17, as the "more advantageous grade of SGT" and all pay and allowance backdated to 7 March 2007.  The form noted the applicant's grade was wrongly determined on his enlistment contract under Army Regulation 601-210, paragraph 2-18, and that he would not have needed a retention control point waiver.  The form was addressed to the Commander, HRC.

32.  In support of the applicant's petition that his enlistment grade be changed was a memorandum dated 26 February 2008 from his Legal Assistance Attorney to the promotion authority at the Army's HRC in Alexandria, Virginia.  This memorandum, which was considered by the Board which reviewed the applicant's original application, essentially requested the applicant be promoted immediately to the grade of E-6 with a date of rank of 6 January 2007 "because an incorrect grade determination procedure was used when he reenlisted in the United States Army."  The memorandum noted the grade determination was never submitted to the "CG, HRC" and that his enlistment contract was full of errors, including the recruiter seeking a retention control point wavier for the applicant when such a waiver was not required because the applicant with within the retention control point parameters for grades E-5 and E-6.  He also argues that the absence of specific information on the applicant's DD Form 1966 required by Army Regulation 601-210 shows that "a grade determination IAW [in accordance with] paragraph 3-17 was never submitted."  The attorney also cited paragraph 8-7 of Army Regulation 601-210 and states "correction of enlistment grade, after enlistment documents have been executed, is to be accomplished by promotion or reduction action, whichever applies."

33.  Paragraph 8-7 of Army Regulation 601-210 states:

Correction of enlistment grade, after enlistment documents have been executed, is to be accomplished by promotion or reduction action, whichever applies.  Enlistment documents will not be altered to reflect the different grade.  Comply with appropriate provisions of AR 600-8-19.  Assistance in establishing an individual's eligibility for a different grade based on enlistment contract and supporting documents may be requested from the DCS, G-1 (DAPE-MPA).  Requests must include copies of substantiating documents or statements.  The service member will be advised of the right to apply to the ABCMR, if required.  The ABCMR, acting for the Secretary of the Army (10 USC 1552), is the authority for correcting (backdating) the effective date when a conflict exists.  AR 600-8-19 provides procedures under paragraph 1-13 for retroactive effective date as well as procedures for receipt of back pay.

34.  On 29 October 2008, after the Board considered the applicant's initial appeal, members of the applicant's chain of command, including his squad leader, first sergeant, platoon sergeant, and company commander signed a letter to the Board recommending the applicant for promotion.  The letter noted the applicant arrived at the 331st Transportation Company in May 2007 pursuing the correction of his record and his promotion.  They noted the applicant had a "spotless record" and "has now missed no less than 18 promotion opportunities while on Active duty and trying to correct his enlistment record."  They noted the battalion commander's support of the applicant's promotion via the December 2007 DA Form 4187 and concluded after a "thorough review" of the applicant's record that the "evidence shows mistakes have been made and corrections are due."  They requested that relief be granted in the form of correction to his enlistment documents and his official military record "along with promotion to include promotion for opportunities missed while on active duty."

35.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states that promotions to E-5 and E-6 are executed in a semi-centralized manner.  It notes, in effect, that while field operations will handle board appearance, promotion point calculation, promotion list maintenance, etc., Department of the Army Headquarters will handle promotion cutoff scores and the monthly sergeant/
staff sergeant promotion selection by-name lists which are determined and announced monthly based on the needs of the Army by grade and MOS.  Table 3-3 reflects the eligibility criteria associated with recommendations for promotion to E-5 and E-6.

36.  Soldiers otherwise qualified may be recommended for promotion to E-5 with 34 months' time in service (TIS) and 6 months' time in grade (TMIG) which may be waived to as little as 16 months' TIS and 4 months' TMIG for those who have been recommended to compete in the secondary zone.  Recommendations for promotion to E-6 require 70 months' TIS and 8 months' TMIG waivable to 46 months' TIS and 5 months' TMIG.  TIS is computed form the Soldier's pay entry basic date, which in the applicant's case is 3 August 1998.

37.  Army Regulation 600-100 (Army Leadership) states that the Army defines leadership as influencing people by providing purpose, direction, and motivation while operating to accomplish the mission and improve the organization.

38.  Field Manual 6-22 (Army Leadership-Competent, Confident, and Agile) states that the Army relies on noncommissioned officers (NCOs) who are capable of executing complex tactical operations, making intent driven decisions, and who can operate in joint, interagency, and multinational scenarios.  They must take the information provided by their leaders and pass it on to their subordinates.  Soldiers look to their NCOs for solutions, guidance, and inspiration.  Soldiers can relate to NCOs since NCOs are promoted from the junior enlisted ranks.  They expect them to be the buffer, filtering information from the commissioned officers and providing them with the day-to-day guidance to get the job done.  To answer the challenges of the contemporary operating environment, NCOs must train their Soldiers to cope, prepare, and perform no matter what the situation.  In short, the Army NCO of today is a warrior-leader of strong character, comfortable in every role outlined in the NCO Corps' vision.

39.  Information extracted from the Army's year of the NCO website notes that typically a sergeant commands a squad of nine to 10 Soldiers.  Because sergeants oversee their Soldiers in their daily tasks, they are considered to have the greatest impact on the Soldier.  Sergeants set the example and the standards for privates.  Staff sergeants also command a squad of nine to 10 Soldiers.  Staff sergeants often have one or more sergeants under their leadership and are responsible for developing, maintaining, and utilizing the full range of their Soldiers' potential.

40.  Army Regulation 15-185 (Army Board for Correction of Military Records) notes that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

41.  The DIEMS date is the earliest date of enlistment, induction, or appointment in a regular or reserve component of a uniformed service as a commissioned officer or enlistment member.  The DIEMS date determines which of the three retired pay formulas a Soldier is eligible to use.  The DIEMS date is not used in the retired pay formula, it only determines which formula will be used.  Provisions exist for individuals to access https://www.erec.army.mil to correct incorrect DIEMS dates but individuals may also contact their unit personnel/administrative officer.  According to information in the applicant's OMPF he initially enlisted in the Army Reserve for a period of 6 years on 17 February 1981 in preparation for his April 1981 enlistment in the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his supporters essentially maintain that because of technical errors in the preparation and processing of his enlistment contract and the flawed manner in which they believe it was determined that he was permitted to enlist in pay grade E-4, that justice dictates the applicant's enlistment record be corrected to show he enlisted in pay grade E-5 and that as a matter of equity he be further promoted to pay grade E-6.

2.  As noted in the cited regulations, enlistment processing is complex, lengthy, and involves a myriad of documents which must be filled out and requirements accomplished.  Whatever the process, ultimately the goal of enlistment processing must be the accession of an individual who is mentally, morally, and physically able to be a successful Soldier.  Determining the appropriateness of allowing a prior-service Soldier to return to military service can be daunting at best and particularly difficult after more than a 17-year break in service.

3.  In the applicant's case the evidence available to the Board indicates the applicant was last discharged in 1989 in pay grade E-5 with an MOS of 52C.  The evidence also shows that the applicant had been on an E-6 recommendation list for over 2 years prior to his discharge and, according to information on his November 1988 performance evaluation report, was, at that point, serving in an E-6 position although he was performing duties as an instructor in an MOS different from his own MOS.

4.  Following his 21 September 2006 enlistment physical examination, it was determined that he was not medically qualified to enlist although a waiver was recommended.  His enlistment document (Section VI-Remarks of the DD Form 1966/4) suggests that a medical waiver was authorized by the Command Surgeon on 16 October 2006 which would have been after the applicant's final physical profile of 3-1-1-2-2-1 was assigned and at a point where all but the applicant's overweight condition had been noted.  That same document indicates a medical waiver was approved by the Command Surgeon on 9 November 2009 which could simply be a reconfirmation of the earlier waiver, a second waiver, or a duplication of the previous waiver.  The fact that the DD Form 2808 provided by the applicant reflects a date stamp of 20 December 2006 does not serve to invalidate the earlier waiver and could simply have been a housekeeping task to fill in missing information.

5.  Nonetheless, unless it had already been determined that the applicant's medical conditions would be waived to permit him to return to military service, there would have been no reason to determine what grade the applicant was going to be allowed to enlist in.  Hence the "timing" of the waiver approval as it appears on the document provided by the applicant does not impact the final determination that his appropriate enlistment grade was E-4.  The medical examination was only relevant to whether or not the applicant would be permitted to enlist and in what MOS, and not what grade he would be permitted to enlist in.

6.  Just as the timing of the medical waiver does not invalidate the grade the applicant was allowed to enlist in, whether or not there was a "memorandum prepared in accordance with AR 25-50" is also not germane to the appropriateness of enlisting the applicant in the grade of E-4.  Clearly the memorandum noted by the applicant as being absent from his grade determination process would have been nothing more than a transmittal document.  The fact that waivers are processed electronically would suggest that  other methods of transmitting grade determinations were equally appropriate; in fact, the applicant's own 25 September 2006 letter addressed to "whom it may concern" could have served the same purpose as the memorandum required by Army Regulation 601-210.  Certainly the absence of that memorandum would not serve to invalidate a grade determination action and would likely not serve as a basis to grant the relief requested by the applicant.

7.  The applicant had a 17-year break in service.  During that time not only did the world change but the Army underwent huge transformations in the way it assigned Soldiers, moved Soldiers, trained, accounted for, and even paid Soldiers.  While the applicant's successful completion of PLDC and BNCOC during his initial tours of active duty might have provided him with basic leadership skills which have stood the test of time, they would have in no way prepared him for the technologically advanced Army of today, one that he would be expected to help junior Soldiers navigate.  It would have been unreasonable to permit an individual with no knowledge of today's Army to enlist in an NCO grade when that individual would then have been expected to counsel, mentor, aid, and guide junior enlisted Soldiers through an Army which bore little resemblance to the Army of the applicant's prior service.

8.  Whatever the process was for arriving at the determination that the applicant should be permitted to enlist in pay grade E-4, clearly those involved in the decision would have taken the length of his break in service into account.  It appears that enlistment in pay grade E-4 was appropriate, in spite of the fact that the determination may not have been reached in precisely the manner dictated by the regulations, and does not serve as a basis to now either correct the applicant's enlistment document or promote him to pay grade E-5.

9.  The evidence does show that the applicant accepted the determination that he would be enlisted in pay grade E-4 and did so in March 2007.  Had the applicant been unhappy with that determination he could have elected not to enlist.  Rather he executed his enlistment contract, knowing full well that he was enlisting in pay grade E-4.  It is unreasonable to argue now that he should be promoted simply because he does not feel that the process was executed precisely as noted in the Army Regulation.  Such processing discrepancies do not serve to invalidate the final outcome in this case.

10.  Because the applicant was enlisting in pay grade E-4, the retention control point information contained in his enlistment contract was relevant and appropriately recorded.  Had he been enlisting in pay grade E-5 or E-6 that retention control point, as he noted, would not have been relevant.

11.  The applicant and his supporters also argue that the applicant has missed out on multiple promotion opportunities directly related to the mismanagement of his enlistment contract and grade determination.  However, the regulation governing enlisted promotions permits the applicant's chain of command to recommend him for promotion and after having attained list status would be eligible for promotion if and when he met announced cut-off scores for his MOS.  It is unclear why his chain of command has chosen to await the result of this action rather than move forward with promotion opportunities that are available to them via the Army's enlisted promotion system.

12.  While the applicant contends that he should be allowed a personal appearance before the Board, there is no requirement for such an appearance and the applicant’s case does not meet the degree of difficulty which would warrant such a hearing.

13.  As noted in the Board's previous action, the applicant's DIEMS date on his LES is incorrect.  However, Board action is not necessary to effect a change in that date and the applicant is advised, once again, to contact his servicing personnel or administrative officer to have the date corrected.

14.  While the applicant also noted that his enlisted record brief contained other errors, i.e., awards, deployment dates, duty position and MOS, those are also areas where administrative corrections can be accomplished within his unit and action by the Board in those areas is not warranted or necessary.

15.  As frustrating as this entire process has been for the applicant, the mere presence of procedural errors in his enlistment contract does not mandate or even suggest that relief is warranted, nor does it invalidate the appropriateness of his enlistment in pay grade E-4.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080010247 on 21 October 2008 and Docket Number 
AR20080017748 on 30 April 2009.



      _________XXX______________
                 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)                                         AR20090016211



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016211



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1