IN THE CASE OF:	  

		BOARD DATE:  20 August 2013

		DOCKET NUMBER:  AR20130008777 


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 record to show his date of rank (DOR) to sergeant first class (SFC) as "21 August 2008" vice "8 March 2003."

2.  The applicant states he initially enlisted in the Regular Army (RA) in 1989, transitioned into the U.S. Army Reserve (USAR) in 1996, and then enlisted in the RA again in 2008.  He did not have any breaks in service.  When he enlisted in the RA in 2008 his DOR for SFC should have been 21 August 2008, as reflected on his DD Form 1966 (Record of Military Processing - Armed Forces of the United States).  No one at the U.S. Army Human Resources Command (HRC), the local electronic military personnel office (Emilpo), the battalion S-1, or the brigade S-1 has been able to make this correction.

3.  The applicant provides:

* Orders Number 03-067-00047, dated 8 March 2003
* Orders Number 05-258-00083, dated 15 September 2005
* DD Form 1966, dated 21 August 2008
* Enlisted Record Brief (ERB), dated 20 February 2013
* Chronological Statement of Retirement Points, dated 13 May 2013

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 record shows he enlisted in the RA on 26 July 1989 and held military occupational specialty 91E (Dental Specialist). 

	a.  Prior to his expiration term of service (ETS), he enlisted in the USAR, to be effective 2 July 1996, for a period of 4 years and 24 days.

	b.  On 1 July 1996, he was honorably released from active duty on upon his ETS.

	c.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was transferred to 7211th U.S. Medical Support Unit, Topeka, KS (USAR).

3.  On 15 February 2000, he reenlisted in the USAR for a period of 6 years.

4.  Orders Number 03-067-00047, issued by Headquarters, 89th Regional Support Command, Wichita, KS, on 8 March 2003 promoted him to the rank/grade SFC/E-7 with an effective DOR of 3 March 2003.

5.  Orders Number 05-258-00083, issued by Headquarters, 89th Regional Support Command, Wichita, KS, on 15 September 2005 promoted him to the rank/grade master sergeant (MSG)/E-8 with an effective DOR of 15 September 2005.

6.  He enlisted in the RA on 21 August 2008, for a period of 3 years, in the rank/grade SFC/E-7.  His enlistment contract contains a:

	a.  DA Form 3286 (Statement of Understanding) which he signed and dated on 12 August 2008.  He acknowledged his application for enlistment into the RA had been accepted under the terms and conditions that his enlistment in the RA would be for a period of 3 years, and his entry grade in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program) would be in the rank/grade of SFC/E-7.
	b.  DD Form 1966, dated 21 August 2008, which shows in item 18 (Accession Data):

* g. (Pay Grade): E-7
* h. (Date of Grade): 21 August 2008

7.  An advisory opinion was obtained from the Operations Management Division, HRC, on 13 June 2013.  The advisory official recommended disapproval of the applicant's request and stated:

	a.  HRC has reviewed the applicant's request and determined his DOR to be correct in accordance with regulatory guidance pertaining to prior service enlistment grades.  There is no regulatory guidance or justification to adjust his DOR as requested.

	b.  The applicant requested to enlist while serving as a first sergeant in the USAR in 2008 and was disapproved.  However, later he agreed to a one grade reduction and was approved for enlistment.  The governing Army regulation states that the DOR for the lower grade will be the DOR to which reduced, as if the Soldier never attained the higher grade.  

	c.  The advisory official further recommended the applicant's immediate commander remove the erroneous DOR for the applicant's DD Form 1966, item 18h, using a DA Form 4187 (Personnel Action).

8.  The applicant was provided with a copy of the advisory opinion but did not respond.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states in:

	a.  paragraph 3–16 (Authorized enlistment pay grade determination), that the pay grade on enlistment into the RA will be determined under paragraph 3–17 and the pay grade for enlistment into the Army Reserve will be determined under paragraph 3–18.  Grade determinations submitted to the Commanding General (CG), U.S. Army Recruiting Command (USAREC) will also be evaluated for enlistment eligibility.  The DOR will be adjusted at the time of RA enlistment per Army Regulation 600–20 (Army Command Policy).  Guidance counselors will advise applicants that this entry will be reviewed for correct entry at the first duty station or reception battalion.  All applicants will have the authority for pay grade clearly annotated on the DD Form 1966.

	b.  paragraph 6-12 (DD Form 1966), that the guidance counselor will review and ensure that the DD Form 1966 is properly completed and compare all entries to verification documents and Standard Form (SF) 86 (Questionnaire for National Security Positions).  The final completed DD Form 1966 should be free of errors and must be legible.  Counselor will print all entries.  The instructions for filling out the DD Form 1966 in item 18 (Accessions Data):

* g.  (Pay Grade):  enter a three digit code - first position enter E, second position enter 0, third position enter appropriate number based on entry pay grade
* h.  (Date of Grade):  must be entered as (YYYYMMDD) - PS will have date adjusted at first duly station as appropriate

	c.  paragraph 6–15 (Correction of errors on enlistment forms), that to correct errors found after applicant has enlisted and forms are distributed, an immediate commander or designee may correct minor administrative and typographical errors found after distribution of forms.  A DA Form 4187 will be completed and DD Form 4 or DD Form 1966 will be corrected for RA.  A copy of the approved DA Form 4187 will be forwarded to the Commander, HRC.  The revised page of the DD Form 4 or its entirety will be completed, to include confirmation of enlistment. The date entered in item 16c by the enlisting officer will reflect the actual date that the oath on the revised DD Form 4 was administered.  “CORRECTED COPY” will be printed in block letters at the top and bottom of each corrected page of the revised DD Form 4.  The corrected pages of the DD Form 4 will be attached to the original DD Form 4.

10.  Army Regulation 600-20, paragraph 2–20 (Date of rank, enlisted Soldiers) states that Soldiers in the USAR who subsequently enlist or reenlist without a break in military Service of more than 90 days will retain the DOR of the grade held prior to reenlistment.  For the purpose of this paragraph, a period during which the Soldier was not a member of the Armed Forces is a break in service if such period is in excess of 90 days (for an enlisted person).

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-19 (Voluntary reduction) states a Soldier may volunteer for reduction to one or more lower pay grades.  The reduction requested by the Soldier will be accomplished by the promotion authority without prejudice.  Such reductions will normally be limited to Soldiers desiring reduction for voluntary entry on active duty in the Active Army.  Enlistment at a lower grade in the RA, the Delayed Entry Program, the ARNG, or other U.S. Armed Force is a contractual agreement and reduction orders are not issued.  Since the Soldier is discharged from the USAR, without a reduction action and voluntarily contracts to enlist at a lower grade, it is not considered a grade reduction within the meaning of this regulation.  Subsequent contractual reentry into the USAR will not authorize grade restoration.  The DOR will be the date of the grade to which reduced as if the Soldier had never attained a grade higher than that to which reduced.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR to SFC should be corrected to the date he enlisted in the RA, 21 August 2008, vice his original DOR of 8 March 2003 because his DOR was reflected as 21 August 2008 in item 18h of his 
DD Form 1966.

2.  He enlisted in the RA on 21 August 2008 and agreed to a one-grade reduction which was approved prior to his enlistment.  The governing Army regulation states that the DOR for the lower grade (SFC) will be the DOR to which reduced, as if the Soldier never attained the higher grade.  In addition, since he never had a break in service he would retain his DOR.  Therefore, his correct DOR is 8 March 2003, the date he was promoted to SFC.  As such, there is insufficient evidence to justify adjusting his DOR.

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)                                         AR20130008777





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ABCMR Record of Proceedings (cont)                                         AR20130008777



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