MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 December 2001
	DOCKET NUMBER:   AR2001057452

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Regan A. Smith		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 pay entry basic date (PEBD) be changed from 16 September 1980 to 5 September 1980.

APPLICANT STATES:  That he took his physical examination on 4 September 1980 and was scheduled to enlist on 5 September 1980; however, his paperwork was lost and it was not until 16 September 1980 that the paperwork was located and he was allowed to enlist.  He further states that at the time of his enlistment, he was led to believe that he would be eligible to receive Retired Pay at the rate of 50% of the highest grade he held; however, he has since learned that because he enlisted after 8 September 1980, he would only be entitled to receive 50% of the average of his last 3 years of enlistment.  Accordingly, since the delay in his enlistment was through no fault of his own, he should have his PEBD adjusted to 5 September 1980, the date he was originally scheduled for enlistment.

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

On 8 March 1980, the applicant’s recruiter in Chicago, Illinois submitted an application for verification of the applicant’s birth to the Illinois Department of Vital Statistics.  On 3 September and 4 September 1980 he underwent medical and physical processing in connection with enlistment. 

On 16 September 1980, he enlisted in the United States Army Reserve (USAR) for a period of 6 years under the Delayed Entry Program (DEP).  On 6 November 1980, he enlisted in the Regular Army for a period of 3 years, training as a combat engineer and assignment to the 2d Armored Division.  He completed his training and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 on 1 October 1996 and was selected for promotion to the rank of sergeant major in February 2001.

A review of the applicant’s Official Military Personnel File (OMPF) fails to show any indication that he was scheduled to enlist any earlier than 16 September 1980.  While there are documents related to processing him for enlistment that are dated prior to 16 September 1980, none of those documents suggest that he was to be enlisted earlier than he did.

In the processing of this case a staff advisory opinion was obtained from the Total Army Personnel Command (PERSCOM), which opined, in effect, that there was no basis to back date the applicant’s service dates to a period in which he had not served.  The opinion was provided to the applicant for comment and he responded to the effect that the evidence of record clearly bears out that he should have been enlisted on 5 September instead of 16 September 1980 and that because his enlistment packet was lost, he is being penalized. 

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.  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.  While the Board understands the basis for the applicant wanting to adjust his PEBD, neither the evidence submitted with his application nor the evidence of record show that he was scheduled for enlistment any earlier than the date of his USAR  DEP enlistment.

3.  Notwithstanding the absence of evidence to show that he was scheduled for enlistment at an earlier date, the Board also notes that enlistment is a volitional act that can only be accomplished by individuals who take an oath and sign the appropriate contracts.  Accordingly, until such time as the contracts and oaths have been accomplished, service is not commenced.  To grant the applicant additional service prior to completion of the necessary regulatory requirements, would be affording the individual concerned a benefit that is not afforded to other soldiers in the same situation and would amount to unfair compensation for services not rendered.

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

__sac___  ___mdm _  __rks ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057452	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/13	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  227	112.0500/ENL DATE	
2.		
3.		
4.		
5.		
6.