PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           27 February 2001                 
	DOCKET NUMBER:   AR2000048225

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Melvin H. Meyer		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be retroactively promoted to staff sergeant (SSG), receive back pay, and receive an enlistment bonus.

3.  The applicant states that he talked with a first sergeant (1SG) and a recruiter about reentering the Army.  He informed them that he wanted to retain his rank of SSG.  While at the recruiting office a fax was received stating that he would retain his rank.  Later, he was told that he was no longer eligible to retain his rank.  He at first informed the 1SG and recruiter that he would not enlist, but after being approached several times he agreed to sign up to help them make their “box” (enlistment goal).  He was told that he would receive an enlistment bonus and that there was a way for him to get his rank back.  After entering active duty the local finance center informed him that he was not authorized an enlistment bonus.  He again contacted the 1SG and recruiter, but they have not assisted him.

4.  The applicant’s separation document reflects that he last enlisted for the Regular Army on 24 February 1988.  He was trained in military occupational skill (MOS) 19D (Calvary Scout) and achieved the rank of SSG.  He was separated on 6 July 1997 under the provisions of Army Regulation 635-200, chapter 4, for Completion of Required Active Service.  He was given the separation code of KBK and reentry code of “1”.

5.  Department of Defense Form 1966/1 (Record of Military Processing – Armed Forces of the United States) reflects that the applicant was enlisted on 20 April 2000 for a period of 3 years in pay grade E-5.

6.  Department of Defense Form 4/1 (Enlistment/Reenlistment Document, Armed Forces of the United States) reflects that the applicant was enlisted on 20 April 2000 for a period of 3 years in pay grade E-5.  This form contains the statement “I certify that I have carefully read this document.  Any questions I had were explained to my satisfaction.  I fully understand that only those agreements in Section B of this document or recorded on the attached annexes will be honored. Any other promises or guarantees made to me by anyone are written below”.  The applicant initialed the block provided to concur that there were no promises or guarantees written.

7.  Department of the Army Form 3286-66 (Statement of Understanding United States Army Incentive Enlistment Program) reflects that the applicant was enlisted for the broken service selective reenlisment bonus (BSSRB) as authorized by Headquarters Department of the Army (HQDA) Message 171600Z December 1999.

8.  Department of the Army Form 3286-64, (Statement for Enlistment US Army Station, Unit, Command, Area Enlistment Program) contains the following statement:  “I have read and understand the statements above and that these statements are intended to constitute ALL promises and guarantees whatsoever concerning my enlistment.  No other (verbal or otherwise) promise or representation not annexed to my enlistment contract is valid or will be honored.  I hereby state that I have NOT been promised anything other than what is written on this form and hereby waive any claim based upon any promise or representation not annexed to my contract…”

9.  United States Army Recruiting Command Message 00-002, which references HQDA, Message 171600Z December 1999 reflects that the BSSRB is authorized for MOS 19D, but only for the specialist rank.

10.  In the processing of the case an advisory opinion was obtained from the Office of the Deputy Chief of Staff for Personnel (ODCSPER).  The opinion concludes that the applicant should have been enlisted at pay grade E-6 at the time he first started working with the recruiter and guidance counselor based on the vacancies that existed.  It was recommended that the applicant be promoted to pay grade E-6 and awarded his BSSRB.  The advisory was provided to the applicant with no response.

11.  A staff member of the Board researched the grade determination with the US Total Army Personnel Command (PERSCOM), Retention Management Division, Inquiries Section.  This section is contacted by guidance counselors to request a pay grade determination decision for prior service soldiers seeking enlistment.  Their files reflect that the applicant was approved to enlist at pay grade E-5 in March 2000 in MOS 19D.  In fact, there were no E-6 authorizations in MOS 19D in the months of January through April 2000.  The advisory was provided to the applicant.  He responded by stating he was verbally informed that he would retain the rank of E-6 by the recruiter and 1SG.  He is willing to waive his rights to the BSSRB if the board would reinstate his rank.

CONCLUSIONS:

1.  The applicant’s enlistment contracts clearly reflect that he was enlisted at the rank of sergeant.  To avoid the type of misunderstanding the applicant is contending occurred, the enlistment forms contain statements which warn the applicant that the Army is not responsible for verbal promises, only those in writing.  Notwithstanding the ODCSPER written advisory opinion, it was later determined telephonically that there were no authorizations for the rank of SSG in MOS 19D when the applicant enlisted and there is no evidence that the applicant was misled to enlist in the Army at the rank of sergeant.

2.  The evidence available does reveal that at the time of his enlistment the recruiting personnel involved believed they were enlisting the applicant in a MOS that was authorized the BSSRB.

3.  Accordingly, since the applicant apparently entered into his contract in good faith and the recruiting personnel did likewise, it would be equitable and appropriate to grant him the BSSRB incentive for which he enlisted.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  showing that as an exception to policy the individual concerned is authorized a BSSRB incentive retroactive to his enlistment on 20 April 2000; and

b.  paying to him all monies due as a result of this correction to his record.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___jns___  ___rwa__  ____mmh  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________John N. Slone________
		        CHAIRPERSON

INDEX

CASE ID	AR2000048225	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010227	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.