MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  7 December 2000
	DOCKET NUMBER:  AR2000042686

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Ernest P. Lutz		Member	
	Mr. John P. Infante		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, change in his enlistment rank from SPC/E-4 to SGT/E5.

APPLICANT STATES:  That he received incorrect information from the Military Entrance Processing Station (MEPS) in reference to his SGT/E5 position in military occupational specialty (MOS) 95B.  In support of his application he submits a copy of a letter from his station commander, platoon sergeant and platoon leader.

EVIDENCE OF RECORD:  The applicant's military records show he initially enlisted in the Colorado Army National Guard (COARNG) on 4 June 1991 and was ordered to active duty for training (ADT).  He was released from ADT on 
17 August 1991 and was returned to control of the COARNG.

He enlisted in the Regular Army on 19 February 1992 as a military policeman (95B).  He continued to serve until he was honorably discharged on 2 August 1996.  He had a total of 7 years, 5 months, and 13 days of creditable service and was discharged in the pay grade of E-5.

After a short break, he reenlisted on 22 December 1999 for a period of 3 years as a military policeman (95B) in the pay grade of E-4. 

The applicant’s records contain a USAREC Form 1150 (Statement of Understanding – Army Policy USAREC Addendum to DD Form 1966 Series)
dated 15 December 1999, which was authenticated in his own hand.  This document indicated that the applicant would enlist at the pay grade of E-4 in accordance with Army Regulation 601-210.  It also indicated that the Retention Management Division, on 5 December 1999, approved an exception to policy for the applicant’s retention control point (RCP).

The applicant’s records also contain a USAREC Form (Statement of Understanding/Regular Army Enlistment Delay for Applicants with Prior Service or an existing Military Service Obligation) dated 22 December 1999, which was authenticated in his own hand.  This document stated that the applicant enlisted for a period of 3 years with an entry grade of E-4 as determined in accordance with Army Regulation 601-210.

The applicant provided a copy of a letter from his station commander, subject; Waiver Requirement.  This letter indicated that the applicant’s case was processed through the Columbus North Recruiter Station for an administrative waiver in October 1999, that the process for the waiver was very detailed, and that his case was forwarded through channels to the Total Army Personnel Command (PERSCOM).  The station commander was informed that the applicant’s waiver was approved on 3 December 1999.  

However, there were no E-5 positions vacant in MOS 95B and that the applicant would have to accept E-4 if he chose to reenter active duty.  The station commander also indicated that the applicant had been separated from the service for only a few months and for him to accept E-4 after obtaining the rank of E-5 seemed unfair.  The station commander further indicated that the applicant should have been granted an exception to policy for his pay grade.  He concluded by stating that in accordance with Army Regulation 601-210 the usual reduction does not take place until 24 months after separation from service.

Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Paragraph 3-17 pertains to enlistment pay grade for applicants with prior military service who are enlisting into the Regular Army.  Paragraph 3-17(b) pertains to former members of a Regular Component (RC) service.  It states, in pertinent part, that applicants last separated from the Regular Army in grade 
E-5 with not more than ten (10) years total active service who enlist within 
24 months following separation, or is a current member of an RC (after Regular Army), the enlistment grade will be SGT provided a valid vacancy exists for the primary military occupational specialty (PMOS) in grade E-5.  (Contact PERSCOM Eligibility Inquiry Section for assignment and vacancy approval).  If no vacancy exists in the former PMOS, enlistment grade will be SPC provided the applicant does not have more than 5 years active federal service.  If enlisting after 24 months from completion of military service the enlistment grade will be determined by the Commanding General (CG), PERSCOM.

Army Regulation 601-280 serves as the authority for the Total Army Retention Program.  It outlines the procedures and criteria for immediate reenlistment of soldiers serving on active duty.  It states, in pertinent part, that a soldier may not 
exceed the retention control point (RCP) for their grade, by more than 29 days before expiration of contracted service (reenlistment or extension).  The RCP for the applicant’s grade at that time provided that he could serve up to 10 years as an E-4.

In the processing of this case an advisory opinion was provided by the PERSCOM, Retention Management Division.  

The PERSCOM advisory opinion stated that the applicant is requesting a change to his enlistment rank from specialist to sergeant.  In accordance with AR 
601-210, paragraph 3-17, applicants last separated from the Regular Army, who are within 24 months of separation, will reenter in the grade of E-5 provided a valid vacancy exists within their PMOS in the grade of E-5.  PERSCOM also stated that at the time of the applicant’s enlistment, MOS 95B was at 105% strength in the grade of E-5 with 193 soldiers on the E-5 promotion list.  Regulatory guidance 

directs that if no vacancies exist, the applicant will reenter in the grade of 
E-5 provided that they do not exceed the RCP for grade E-4.  Therefore, PERSCOM recommended that no change be made to the applicant’s rank or enlistment contract.

The applicant was provided 30 days to submit matters in rebuttal, however, the applicant failed to respond within the time allotted.

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 Board notes the applicant’s contention that he received incorrect information from the MEPS in reference to his SGT/E-5 position in MOS 95B. 
The Board also notes that the applicant’s waiver was submitted in October 1999, that the packet was forwarded through channels to PERSCOM, and that the station commander was informed the request was approved on 3 December 1999.  However, there were no E-5 positions vacant in MOS 95B and the applicant would have to accept E-4 if he chose to reenter active duty.  

2.  The Board notes that the applicant authenticated his Statement of Understanding, dated 15 December and 22 December 1999, that he would reenter active duty in the pay grade of E-4 in the MOS of 95B.  The Board further notes that the Retention Management Division of PERSCOM approved an exception to policy for the applicant’s RCP.  Therefore, there is no basis to change his enlistment rank from SPC/E-4 to SGT/E5.

3.  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.

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

__ro___  __el______  __ji______  DENY APPLICATION

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

INDEX

CASE ID	AR2000042686	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001207	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	Active duty	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310		
2.		
3.		
4.		
5.		
6.