MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 October 1999                   
	DOCKET NUMBER:   AR1999028535

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Lester Echols		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 rank of Sergeant (SGT), E-5 be reinstated.

APPLICANT STATES:  That he was a SGT in the Air Force Reserve when he reenlisted in the Regular Army.  When he reenlisted, he was told there were no SGT positions available.  He acknowledges the regulation does state this is a requirement; however, there was not an overabundance of E5s in the 95B field during that time as evidenced by the promotion points.  He is obviously qualified for the rank; he has been given E-6 responsibilities ahead of other E-5s.  He is not asking for anything that the regulation does not allow.  Supporting evidence is as listed on the DD Form 149.

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

He served in the Regular Army from October 1985 – December 1991 and separated in the rank of SGT as a 95B, Military Police.  He served in the Army National Guard from January 1994 – July 1998 and separated in the rank of SGT.  He enlisted in the Air Force Reserve in the rank of SGT.  He enlisted in the Regular Army on 19 February 1999 in the rank of Specialist, E-4.

In February 1999, the promotion point cutoff scores for SGT, military occupational specialty (MOS) 95B, primary and secondary zones were 560 and 564, respectively.  Targeted/projected fills for SGT, 95Bs were at 102 percent and 101 percent, respectively.

Army Regulation 601-210 prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U.S. Army Reserve.  In pertinent paragraph, it states that when an applicant for reenlistment was last separated from the Regular Army in grade E-5 with not more than 10 years total active service and enlists within 24 months following separation, or is a current member of a reserve component (after Regular Army service), the enlistment grade will be SGT provided a valid vacancy exists for the primary MOS in grade E-5.  If no vacancy exists in the former primary MOS, the enlistment grade may be Specialist.

In the processing of this case, an advisory opinion was obtained form the Retention Management Division, U. S. Total Army Personnel Command.  The opinion recommended disapproval of his request as there were no vacancies for SGT when he enlisted.

A copy of the advisory opinion was provided to the applicant for rebuttal.  He did not respond within the given time frame.

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, 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 Board is empathetic with the applicant’s contentions regarding the cutoff scores for promotion to SGT, MOS 95B; both the primary and secondary zone scores were low and would lead one to believe there was a need for SGT 95Bs.  However, the targeted and projected fills were above 100 percent.  There were no vacancies for the applicant to fill and the regulation makes no exceptions.

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

__jhl___  __kak___  __le____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028535	
SUFFIX		
RECON		
DATE BOARDED	19991014	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	112.02	
2.		
3.		
4.		
5.		
6.