MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 August 2000
	DOCKET NUMBER:   AR2000037951

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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, that the Department of the Army (DA) Form 4991-R (Declination of Continued Service Statement-(DCSS) be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that when reviewing his OMPF prior to the Fiscal Year (FY) 2000 Sergeant First Class (SFC) selection board, he discovered that a DCSS had been placed in the General Administrative Section of his OMPF microfiche.  He claims that in August 1997, while undergoing his levy briefing based on his having received assignment instructions for Germany, he was given the option to either extend his enlistment to meet the tour service remaining requirement or to sign a DCSS.  He believed at the time that he had 30 days to make a decision to either extend or reenlist to meet the service remaining requirement or to execute the DCSS.  This belief is supported by the preparation instructions contained on the DA Form 4991-R which state that a member has 
30 days from the date of notification of assignment to extend or reenlist or to execute the DCSS.  He thought he could take 30 days to think about it and withdraw the DCSS statement if he elected to extend or reenlist within the allotted time.  He claims that about a week after signing the DCSS he decided that he would reenlist and comply with the assignment instructions.  He discussed this decision with his Reenlistment Noncommissioned Officer (NCO) and completed the required reenlistment paperwork.  He took this paperwork to the levy section where the levy clerk removed a form he thought to be the DCSS and threw it away.  He indicates that he is concerned that the DCSS is on file in his OMPF because by regulation the execution of a DCSS places a member in a non-promotable status and prohibits them from reenlistment.  He further comments that since he has reenlisted twice since the DCSS was signed, this should clearly establish that the DCSS was never officially executed.  He claims to have discussed the filing of the DCSS in his OMPF with an official from the Enlisted Records and Evaluation Center (EREC) who informed him she had no idea why the DCSS was in his OMPF.  The official also agreed with him that it should not be there and he also spoke with her supervisor who also agreed it should not be filed in his OMPF but that they did not have the authority to remove it from the record since it was a properly filed document.  He was also advised by the EREC supervisor that he could apply to this Board to have the DCSS removed from his OMPF.  

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

He initially entered the Regular Army on 15 January 1991 and he has continuously served on active duty until the present.  He currently holds the rank of Staff Sergeant (SSG) and he is assigned to Headquarters, Special Operations Command Europe, APO AE 09128.  

As a result of his being placed on assignment instructions to Germany, on
14 August 1997, the applicant executed a DCSS.  The applicant’s record is void of information in regard to the processing of his DCSS or pertaining to any request or decision he may have made to withdraw the DCSS or to take action to reenlist to meet the overseas service remaining requirement.

The record does contain a Department of the Army (DA) Form 3340-R (Request for Reenlistment or Extension in the Regular Army), dated 4 November 1997.  In Section II (Commander’s Certification) of this form the applicant’s unit commander indicated that the applicant was fully eligible for reenlistment and he approved the applicant’s continued service in the Army.  

Department of Defense (DD) Form 4 (Enlistment/Reenlistment Documents) documents on file in the applicant’s record show that he was allowed to reenlist on two occasions subsequent to his signing the DCSS.  On 17 November 1997, he was allowed to reenlist for 2 years and on 11 June 1998, he was again allowed to reenlist for 4 years.  

The applicant provided a memorandum from the Chief of the Personnel Actions Branch at the EREC, dated 30 December 1999.  This memorandum advises the applicant that they could not act on his request to remove the DCSS from his OMPF.  They commented that the EREC did not have the authority to remove properly filed documents and that the document in question was properly filed under the provisions of Army Regulation 600-8-104.  They also suggested that the applicant apply to this Board to have the DCSS removed from his OMPF.

Army Regulation 600-8-104 prescribes the policy for the filing of documents in the OPMF.  Table 2-1 contains guidance on the composition of the OMPF and on the proper filing disposition and location of specific documents.  This table indicates, in pertinent part, that documents related to the DCSS and to approved withdrawal of a DA Form 4991-R (DCSS) will be filed in the general administrative portion of the OMPF.  

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

1.  The Board noted the applicant’s desire to have his DCSS removed from his OMPF, and understands his concern over this document remaining on file in his records.  However, in the opinion of the Board, there is no evidence to suggest that the document in question is filed in error or that it being retained in the OMPF results in some particular injustice to the applicant.  

2.  The DCSS was executed in August 1997 and the applicant did not reenlist until November 1997, which was more than the 30 days processing time allowed to execute a DCSS.  However, even though no formal withdrawal of his DCSS is on file, the applicant being allowed to reenlist twice subsequent to the filing of the DCSS, in effect, serves as a withdrawal of the DCSS and negates any adverse effects that could have resulted from the original action. 

3.  The applicant’s DCSS was properly filed in the general administrative portion of the OMPF, in accordance with the applicable regulation.  By regulation, all documents related to the execution and or withdrawal of a DCSS are authorized to be filed in the general administrative section of the OMPF and these documents are not used by the Army in making personnel management decisions.  Therefore, the Board finds no basis for removing the DCSS from the OMPF, and further concludes that granting the applicant’s request to remove this document would result in no effective relief.

4.  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 this requirement.

5.  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

___sw___  __lds____  __mm___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037951	
SUFFIX		
RECON		
DATE BOARDED	2000/08/17	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1021	100.0000	
2.  398	134.0000	
3.		
4.		
5.		
6.