IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120000801 

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 DD Form 4/1 (Enlistment/Reenlistment Document) to show the rank of staff sergeant/E-6 instead of sergeant/E-5. 

2.  The applicant states, in effect, that he enlisted in the New York Army National Guard (NYARNG) in the rank SSG/E-6.  The applicant argues that his rank was changed on his DD Form 4/1 from SSG to SGT without his knowledge.  The applicant also states the signatures on his DD Form 4/2 (Certificate and Acceptance) located on the Army Military Human Resource Record (AMHRR) are not his or his recruiter’s.  Further, the applicant states there was no reason for him to be reduced in rank, because he had been an SSG in the U.S. Marine Corps (USMC) prior to enlisting in the NYARNG.

3.  The applicant provides: 

* his copies of the DD Form 4/1 and DD Form 4/2
* copies of his DD Forms 4/1 and DD Form 4/2 located on the AMHRR
* copies of his DD Form 1966 (Record of Military Processing – Armed Forces of the United States) 
* a letter from the Department of the Army and Air Force, Inspector General (IG) for New York, dated 11 April 2011
* 15 pages of e-mail messages, which show his rank as SSG, with dates from November thru December 2008


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 was discharged from the USMC on 15 December 2002 in the rank of SSG.  He enlisted in NYARNG on 7 June 2005 in the rank of SSG.  His DD Form 4/1 shows he enlisted for a 3-year term of service.  Section II - Examination and Entrance Data Processing Code of the applicant’s DD Form 1966/1 shows:

* Pay Grade - E-6
* date of enlistment - 7 June 2005
* DOR 7 June 2005
* Military Occupational Specialty (MOS) - 42A3O (Human Resources Specialist) [E-6 position]

3.  The applicant reenlisted in the NYARNG on 30 September 2008.  Item 8 (Agreements) of the applicant’s DD Form 4/1, located on the AMHRR shows he reenlisted in the NYARNG for a 6-year term of service in pay grade E-5.  This document was signed on 30 September 2008.  In addition, the very top of the page, above the header, contains the entry “*Field Enlist* DD4 = 20080930."

4.  The applicant provided a personal copy of the DD Form 4/1, which shows his reenlistment pay grade as E-6.  This document shows he signed and dated it on 30 September 2008.

5.  Item 18a (Date of Enlistment) of the applicant’s DD Form 1966/1, dated 
30 September 2008, shows the entry “20080930,” item 18g shows the applicant's pay grade as E-5 and item 18g (T-E MOS) 31B2O (Military Police).  The document was signed and dated on 30 September 2008.

6.  The applicant’s new unit’s modified table of equipment/table of distribution and allowances (MTOE/TDA) (by paragraph and line number) shows:
* Paragraph - 102
* Line number - 03
* Title - Compound Guard
* Grade - E-5
* MOS - 31B2O

7.  There is no evidence in the applicant’s records that shows he held the rank of SSG after his reenlistment date on 30 September 2008.

8.  A National Guard Bureau (NGB) Form 21 (Annex A - DD Form 
4 Enlistment/Reenlistment Agreement - Army National Guard), dated 
30 September 2008, shows the applicant was not MOS qualified and agreed to be trained in MOS 31B2O.  He signed and initialed the document.

9.  An NGB Form 600-7-6-R (Annex X to DD Form 4 Prior Service Enlistment Bonus Addendum Army National Guard of the United States), dated 
30 September 2008, shows the applicant enlisted for a $15,000 bonus and his initial bonus payment would not be processed until he became duty MOS qualified.  The applicant initialed and signed the document.

10.  The applicant provided a letter from the Assistant, IG, Department of the Army and Air Force, IG for New York, dated 11 April 2011.  The official stated based on the information provided his office it was determined the applicant’s current rank of E-5 was correct.  The Noncommissioned Officer Evaluation Report (NCOER) report from 20070501 through 20080430 showed the applicant held the rank of SSG within the 42A3O career field (Human Resources).

11.  The official continued that the DD Form 1966, dated 30 September 2008, shows he made an MOS career change with a $15,000 bonus and a new MOS.  This block also has the applicant’s initials indicating he understood the rank and qualifications to be met.  Additionally, the Servicemember’s Group Life Insurance form signed on 30 September 2008 lists the rank of SGT, and the NCOER for the period 20081130 thru 20091129 shows the rank of SGT within this new MOS.  The applicant’s case was closed without action.

12.  The applicant’s remaining NCOER’s located on his AMHRR for the periods
20091130 through 20100930 and 20101001 through 20110930 show his rank as SGT, DOR of 30 September 2008, and MOS 31B2O.  In addition, his records contain a DA Form 1059 (Service School Academic Evaluation Report), dated 
24 September 2011, which shows he successfully completed 31B1O Reclassification Course Class 002-11.

13.  The applicant provided 15 pages of e-mail messages from November through December 2008, which show his rank as SSG.

14.  National Guard Regulation 600-200, paragraph 11-60, in effect at the time, stated that all enlistments would be made against position vacancies under the "authorized" column of MTOE/TDA (by paragraph and line number).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his records to show his rank as SSG instead of SGT was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The evidence of record shows the applicant was honorably discharged from the USMC on 15 December 2002.  He enlisted in the NYARNG on 7 June 2005 for MOS 42A3O in the rank of SSG.  

3.  The preponderance of evidence shows the applicant took a voluntary reduction in rank from SSG to SGT for reenlistment in MOS 31B2O, which is an E-5 position on his unit’s MTOE/TDA, and a bonus.  The applicant’s records located on his AMHRR dated on or after 30 September 2008 show his rank as SGT.  Therefore, his records correctly show his rank and grade of SGT/E-5.

4.  The applicant contends the signatures and initials on the DD Form 4/2 and DD Form 1966 that are in the AMHRR are not his or his recruiter’s.  However, the signatures on the documents in the AMHRR are consistent with the applicant's signatures and initials on his NYARNG contract, dated 7 June 2005.  Therefore, there is no basis for this argument.
 
5.  In the absence of evidence to the contrary, it is presumed the applicant's reenlistment was accomplished in compliance with applicable regulations and without procedural errors that would have jeopardized his rights.  

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)                                         AR20110023628



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ABCMR Record of Proceedings (cont)                                         AR20120000801



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