MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           21 November 2000
	DOCKET NUMBER:   AR2000046573

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Paqan		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Roger W. Able		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, correction of his DD Form 4/1 (Enlistment Reenlistment Document-Armed Forces of the United States) to show that he enlisted in the Army Reserve on 7 September 1980, vice 8 September 1980 as currently shown.

APPLICANT STATES:  In effect, that those service members who enlisted on or after 8 September 1980, receive retired pay according to the “high three formula.” If he had been allowed to enlist prior to 8 September 1980, he would receive retirement pay based on the previous pay formula which would significantly increase his retirement pay.  However, he was prohibited from enlisting earlier due to Army constraints placed on the program in which he was enlisting.  He submits an information paper, his DD Form 4/1-4/4 (Enlistment/Reenlistment Document-Armed Forces of the United States) and SF Form 48 (Report of Medical Examination), dated 23 April 1980, in support of his request.  The information paper defines and explains the date initially entered military service (DIEMS), and how it affects retired pay.

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

That many inquiries were required prior to approval of his enlistment due to his 
pre-service record of a number of traffic violations.  A final waiver to enlist was issued on 5 August 1980.  He was granted authority to enlist in the warrant officer flight training (WOFT) program, but only for a period of enlistment not to exceed 4 years.  

He enlisted in the Delayed Entry Program (DEP) United States Army Reserve (USAR) on 8 September 1980 for a period of 6 years.  His enlistment option was for the WOFT program.  On 21 April 1981, he was discharged from the DEP and he enlisted in the Regular Army for a period of 3 years.  On 6 May 1982, he was appointed a Reserve warrant officer.  He is currently serving on active duty with the rank of chief warrant officer four (CW-4).

Part 11b of the applicant’s DD Form 4/2 states that laws and regulations that govern military personnel may change without notice. Such changes may affect a member’s status, pay, allowances, benefits, and responsibility as a member of the Armed Forces regardless of the provisions of the enlistment/enlistment contract.  The applicant authenticated the contract with his own signature indicating that he understood the provisions of the document.

In connection with his application, the U.S. Total Army Personnel Command (PERSCOM) opined in essence, that the available documents clearly show that the applicant enlisted in the USAR on 8 September 1980.  Further, PERSCOM opines that it does not have the authority to change his DD Form 4. 

This opinion was referred to the applicant for comment, and he rebutted the PERSCOM advisory opinion by stating that he was never informed of the impact that enlisting on 8 September 1980 would have on his retirement pay.  He can prove his intent to enlist as early as April 1980.

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 this requirement.

2.  The Board determined that the delay the applicant experience in being approved for enlistment was not unreasonable considering the number of inquiries and waivers that were required for the program for which he was enlisting. 

3.  Further, the Board concludes that at the time the applicant enlisted, he was informed that his benefits were subject to change without notification.

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

__tap ___  ___teo___  ___rwa__  DENY APPLICATION

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

INDEX

CASE ID	AR2000046573	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001121	
TYPE OF DISCHARGE	(N/A)	
DATE OF DISCHARGE	(NA)	
DISCHARGE AUTHORITY	N/A 	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.0000	
2.		
3.		
4.		
5.		
6.