MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            8 March 2000                  
	DOCKET NUMBER:   AR1999018389

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. Elzey J. Arledge Jr.		Member	
	Mr. Ernest W. Lutz Jr.		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:  That his records be corrected to show that he was enlisted in the Regular Army as a sergeant (E-5) on 25 September 1997; that his NGB Form 22, Report of Separation and Record of Service, dated 1 June 1996, be corrected to credit him with his time spent in the Reserve Officers’ Training Corps/Simultaneous Members Program (ROTC/SMP).

APPLICANT STATES:  In effect, that PERSCOM did not consider all of his previous military experience in arriving at a grade determination.  Also, a change to AR 601-210 granted credit for ROTC/SMP participation.

EVIDENCE OF RECORD:  The applicant's military records are incomplete.  Available records show:

He enlisted in the Delayed Enlistment Program (DEP) for the Ohio Army National Guard (OHARNG) for 8 years.  His actual date of enlistment was 22 July 1985.  He attended active duty for training from 22 July 1985 through 11 December 1985, after which he was awarded MOS (Military Occupational Specialty) 72E10, Combat Telecommunication Center Operator.  He was separated on 8 June 1988.

The applicant attended Ohio University in Athens, Ohio and graduated from Ohio State University in Columbus, Ohio.  It is unclear when he matriculated to Ohio University, but he signed an ROTC contract to enroll in advanced ROTC on 10 September 1986.  Transcripts from Ohio State University indicate that he attended that school from late 1988 to June 1990 when he graduated with a B.S. degree.  These transcripts show that he took one 200-level ROTC course and two 400-level courses while at Ohio State.

In June 1988, the applicant was appointed a second lieutenant in the OHARNG.  He served an active duty for training tour from 3 April 1991 through 18 May 1992, during which time he attended the Field Medical Assistant Officer Course and the Health Services Materiel Officer Course at Fort Sam Houston, Texas.  On 12 August 1991, he was promoted to first lieutenant.  He was promoted to first lieutenant in the OHARNG on 30 July 1992, and to captain on 16 August 1994.  He has an NGB Form 22, dated 1 June 1996 which indicates that he was in the ROTC/SMP from 10 September 1986 to 8 June 1988, but there is no SMP contract in the record.

On 25 September 1997, the applicant enlisted in the Regular Army as an E-4 in order to attend training as Pharmacy Specialist (MOS 91Q10).  He received a grade determination from Headquarters, US Total Army Personnel Command (PERSCOM) which was duly noted on his enlistment contract.

In the processing of this case, an advisory opinion was obtained from PERSCOM which indicated that, at the time of his enlistment on 25 July 1997 (sic), the applicant was a captain.  The opinion stated that for the applicant to enlist as a sergeant (E-5), a valid vacancy must have existed in his chosen MOS.  Since no vacancy existed, the PERSCOM Grade Determination Board found him eligible to enlist as a specialist (E-4).  The opinion recommended that the applicant’s request for advancement to E-5 be denied.

The applicant was provided an opportunity to rebut the PERSCOM advisory opinion and provided a 4-page letter in response.  In effect, the applicant stated that the PERSCOM advisory opinion did not get his enlistment date correct [it erroneously stated the date as 25 July 1997, not 25 September 1997].  He added that his recruiter did not provide him with valid information; that he really wanted to be a USAR recruiter, but was told that he could not enlist for that option.  He stated that the Grade Determination Board’s decision was not based on all of his military experience and that he should have been permitted to enlist as an E-5 or even an E-6.  He said that there were E-5s in his pharmacy course, so how could there not be a vacancy in that grade?

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).  It states, in pertinent part, that a former officer without statutory entitlement is authorized to enlist as an E-5 provided a valid vacancy exists for his chosen MOS in grade E-5.  Headquarters, PERSCOM determines assignment and vacancy approval.  If no vacancy exists in the chosen MOS, the enlistment grade will be E-4.

Army Regulation 601-210 also prescribes the policy and procedures for administering the ROTC/SMP.  Chapter 10 describes the ROTC/SMP as a voluntary officer training program designed to increase the number of ROTC officers available to Reserve Forces duty and provides the future officers with Reserve troop program unit experience.  The program allows qualified enlisted personnel to enter the advanced ROTC course and to serve in the USAR as officer trainees (identified by a specific military occupational specialty code) in the enlisted pay grade attained.  Upon successful completion, the individual is required to volunteer for commissioning in the ROTC Early Commissioning Program.  The regulation in effect at the time specified that, “By law (10 USC 2106) a commissioned officer may not, when computing length of service for any purpose, apply credits that stem from enlisted service served concurrently with ROTC Advanced Course Training.”

Public Law 104-210, section 507, enacted on 23 September 1996, amended the provision of 10 USC 2106 to provide service credit for participation in the ROTC/SMP retroactive to 1 August 1979, when the SMP actually began.  The revisions do not result in increase in active duty, retired or retained pay before the date of enactment.  If the credit results in a higher basic pay due to a change in the pay entry basic date (PEBD), the effective date of the increase in basic pay will be 23 September 1996.

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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant has not shown that he was in the ROTC/SMP program by providing the necessary documentation (copies of the SMP contract).  The only mention of his membership in the SMP is a note on his NGB Form 22.  Should the applicant be able to prove SMP membership, he would be entitled to an adjusted Pay Entry Basic Date to his entry in the SMP, but would not be entitled to any pay adjustment prior to 23 September 1996.

3.  The applicant signed an enlistment contract to enlist in the Regular Army for 5 years as an E-4 for training as a pharmacy specialist.  His prior service was considered by the PERSCOM Grade Determination Board, to include his service as a captain, in arriving at his enlistment grade.  Since no vacancy existed in his chosen MOS at the E-5 grade, he was only authorized enlistment as an E-4.  All of this was explained to the applicant and recorded on his enlistment contract which he duly signed.

4.  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

__rvo___  ___eja___  __ewl___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999018389	
SUFFIX		
RECON		
DATE BOARDED	20000308	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	112.0200	
2.	112.0700	
3.		
4.		
5.		
6.