MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:       19 November 1998        
	DOCKET NUMBER:   AC98-10151

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	if any)

APPLICANT REQUESTS:  In effect, the applicant requests that his military records be corrected to show that he was reenlisted in the Regular Army on 
17 June 1998 in pay grade E-5 with the restoration of all rights, privileges, and property. 

APPLICANT STATES:  That he was discharged from the Army on 
28 March 1998 with the rank of Sergeant E-5.  He was informed that should he desire to reenlist within two years of his separation he would retain his rank, and this information was reiterated on 26 May 1998 during his initial reenlistment processing.  However, when he returned to the recruiting station to reenlist, after severing all his ties with his civilian environment, he was informed that he would have to be reenlisted in a lower grade.   He states that such “bait and switch” tactics are unethical and illegal and that the recruiting personnel had ample opportunity to notify him of the change in his reenlistment grade.  He also states that reenlistment personnel did not contact the Total Army Personnel Command (PERSCOM) for assignment, vacancy, and grade determination approval prior to enlisting him.  He states that he met the requirements for reenlisting in pay 
grade E-5.   

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was released from active duty on 28 March 1998 with the rank of Sergeant E-5 at Baumholder, Germany.  His character of service was honorable and he had 6 years, 5 months, and 26 days of service.

A record of military processing (DD Form 1966 series) that the applicant submits with his application, and which he signed on 26 May 1998, shows an enlistment grade of E-4; however, with a date of rank of 1 December 1995, the date he was promoted to pay grade E-5 during his last period of service.  That document  shows that he intended to reenlist in his former MOS (military occupational specialty) of 12B10 (engineer). 

The applicant also signed a USAREC Form 1150 (Statement of Understanding) on 28 May 1998, in which he indicated that his enlistment grade was E-4 in accordance with Army Regulation 601-210, paragraph 3-17b(3), and that there were no Sergeant E-5 vacancies in MOS 12B20.  That document shows that his date of rank would be adjusted at his first duty station.

The applicant reenlisted in the Army for three years on 17 June 1998 in pay grade E-4.  He signed the reenlistment document (DD Form 4 series) on that date. 

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from PERSCOM.  An official of the PERSCOM Recruiting Policy Branch stated that the applicant’s enlistment processing was conducted in accordance with regulations.  He recommended that the applicant’s request be denied.

Army Regulation 601-210 prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Paragraph 3-17b(3) states if an applicant was last separated from the Regular Army in grade E-5 with not more than ten (10) years' total active service and enlists within 24 months following separation, or is a current member of an RC (after Regular Army service), enlistment grade will be SGT provided a valid vacancy exists for PMOS in grade E-5. (Contact PERSCOM Eligibility Inquiry Section (703-325-6092) for assignment and vacancy approval). If no vacancy exists in former PMOS, enlistment grade will be SPC provided applicant does not have more than 5 years active federal service
(Information obtained from an official in the PERSCOM Recruiting Policy Branch on 16 November 1998 is that 5 years active federal service was changed 
to 7 years effective in April 1997).  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant signed documents both before his reenlistment and at the time of his reenlistment that his pay grade would be E-4.  He understood perfectly that there was no vacancy that existed in his former MOS in pay grade E-5.  He accepted reenlistment in pay grade E-4.

2.  The applicant’s reenlistment processing was accomplished in accordance with regulations.  There is no error nor any injustice done the applicant. 

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__FNE___  __TAP___  __BJE___  DENY APPLICATION

						Loren G. Harrell
						Director