BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090018089 


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 correction of his military records to show that he enlisted in the Regular Army as a sergeant first class.

2.  The applicant states he was promoted to sergeant first class/pay grade E-7 on 1 September 2005 while mobilized in the U.S. Army Reserve.  In February 2007, he desired to transfer to the Regular Army through the Reserve Component/Active Component option.  Soon afterward he received a memorandum from the U.S. Army Human Resources Command approving him for a sergeant first class with the 4th Infantry Division located at Fort Hood, Texas.  The offer was valid for a period of 6 months; however, his unit commander would not allow him to demobilize to accept the assignment.  During month 7, after the offer had expired, he was informed of his demobilization because he was no longer needed as a senior observer controller/trainer due to a reduction in missions.  As a result of these circumstances, he felt his only option was to enlist through a local recruitment office.

3.  The applicant further states the local recruiter informed him that the Army never reclassifies Soldiers in the grade of E-7.  A DD Form 1966 (Record of Processing - Armed Forces of the United States) was prepared for submission without a grade determination form.

4.  The applicant provides a summary of facts; a promotion selection letter, dated 18 August 2005; promotion orders, dated 22 August 2005; four DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the periods from November 2004 through 19 February 2008; paragraph 3-17c, Army Regulation 601-210 (Active and Reserve Components Enlistment Program); and DD Form 1966, dated 2 February 2007.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a staff sergeant/pay grade E-6.

2.  On 26 January 2005, the applicant was ordered to active duty as a member of the U.S. Army Reserve in support of Operation Enduring Freedom.  He was subsequently assigned for duty at Fort Sill, Oklahoma.

3.  Orders 05-234-00019, 75th Division (Training Support), dated 22 August 2005, promoted the applicant to sergeant first class/pay grade E-7 in military occupational specialty (MOS) 13M4O (Multiple Launch Rocket System).

4.  On 13 January 2007, the applicant was released from active duty upon completion of required active service.

5.  The applicant's DD Form 1966, dated 2 February 2007, indicates in section VI (Remarks) that an administrative waiver was approved by the Deputy Director of Recruiting Operations on 23 January 2007.  The corresponding grade authority control number is recorded on the contract.

6.  A DA Form 3286 (Statement of Understanding), dated 2 February 2007, indicates the applicant acknowledged that his application for enlistment in the Regular Army was accepted under the following terms:

	a.  to report for enlistment on 20 February 2007 for a period of 6 years and 11 weeks,

	b.  to begin his active duty service in pay grade E-6, and

	c.  to receive training in MOS 19D (Cavalry Scout) and a 6-year cash bonus.

7.  Orders 07-103-00002, 75th Division (Training Support), dated 13 April 2007, discharged the applicant from the U.S. Army Reserve effective 20 February 2007 for the purpose of immediate enlistment in the Regular Army.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Force Alignment Division, U.S. Army Human Resources Command, Alexandria, Virginia.  The opinion stated the applicant received a grade determination in accordance with Army Regulation 601-210 upon his entry into the Regular Army in February 2007.  The applicant signed this form acknowledging his enlistment beginning in the rank of staff sergeant/pay grade E-6.  The opinion recommended denial of the applicant's request.

9.  On 12 April 2010, the applicant submitted a rebuttal to the advisory opinion.  He argued that at the time of his enlistment no documentation for the grade determination was included in his contract.  He contends that the recruiter did not submit a grade determination on his behalf.  The recruiter did not mention a grade determination and no record of the determination is in his official military personnel file (OMPF).  The recruiter did state at the time that the Army "never would or never had [reclassified] a sergeant first class and the only way to come back in is to lose a stripe."  The applicant feels the recruiter should have presented each and every option available to him so that he could have made an informed decision regarding the ability to keep his sergeant first class rank.  The applicant contends that due to the absence of the grade determination forms, he opines that his enlistment contract was and is incomplete and should be considered null and void.

10.  Army Regulation 601-210 prescribes policies and procedures to process applicants for enlistment in the Regular Army.  Paragraph 4-22a(1) requires the following documentation for requesting a grade determination for enlistment in the Regular Army:

* a memorandum for waiver of enlistment standards
* documents recording prior military service
* DD Form 1966
* documentation of aptitude test scores
* physical examination or other document showing height, weight, date of physical examination, and physical profile

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he enlisted in the Regular Army as a sergeant first class.

2.  The evidence of record clearly shows the applicant enlisted in the Regular Army on 20 February 2007 as a staff sergeant/pay grade E-6 for a period of 6 years and 11 weeks.  His contract contains his signature and date indicating he was fully aware of the conditions of his enlistment contract.



3.  The applicant's DD Form 1966 clearly states a grade determination of E-6 was approved.  The corresponding grade determination control number is recorded on the form.

4.  The applicant contends his contract should be considered null and void because a copy of the grade determination was not attached to his contract or filed in his OMPF.  The governing regulation does not require the grade determination to be so filed.

5.  In view of the foregoing, the applicant's request should be denied.
 
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)                                         AR20090018089



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ABCMR Record of Proceedings (cont)                                         AR20090018089



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