PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           27 September 2001
	DOCKET NUMBER:   AR2001058633

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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, in effect, that her private/E-2 (PV2) promotion date be adjusted back to the date of her enlistment and that she receive any back pay due as a result. 

3.  The applicant states, in effect, that she should have entered active duty as a PV2 as a result of her referral of a qualified candidate for enlistment who entered the Army prior to her going on active duty.  She claims that she did not enter active duty as an PV2 because the promotion paperwork was not submitted by her recruiter prior to her enlistment. 

4.  The applicant’s military records show that on 10 September 1999, she entered active duty in the Regular Army for 4 years.  The enlistment contract on file indicates the applicant entered in the rank and pay grade of private/E-1.

5.  The applicant provided a copy of Memorandum of Record (MOR), dated 
29 March 2000, prepared by the Recruiting Station Commander, Plano, Texas, which indicates that the applicant had referred a qualified candidate who ultimately enlisted in the Army on 29 July 1999.  He confirms this referral should have qualified the applicant to enter active duty as a PV2 and he is unsure why the appropriate documentation (USAREC Form 512) was not included in the applicant’s enlistment packet prior to her entering active duty.  He concludes by indicating that in accordance with USAREC regulations the applicant should have been promoted to PV2 on the date she shipped out and because her referral was given before she went to basic training she should receive back pay.  

6.  A Personnel Action (DA Form 4187) provided by the applicant authorizes her promotion to PV2 with a date of rank and promotion effective date of 
9 September 1999.  This document was signed by her unit commander and although the date is illegible, it appears to have been prepared sometime in March 2000.  The authority used for the promotion was Army Regulation 
600-8-19 and United States Army Recruiting Command (USAREC) Regulation 601-95.  There is an additional instruction contained in the DA Form 4187 that indicates that the applicant was eligible for the rank of PV2 at the time of her enlistment under the USAREC referral program.  

7.  In connection with the processing of this case an advisory opinion was requested of and received from the Office of the Deputy Chief of Staff, Personnel (ODCSPER), dated 19 July 2001.  It indicated that the applicant’s supporting documentation was determined to be insufficient to support an adjustment to the applicant’s PV2 promotion effective date and date of rank.  It was further opined that the applicant should have provided the supporting documentation at the time she entered active duty, on 10 September 1999, or within 6 months in order to comply with the requirements outlined in Army Regulation 601-210 and based on this it was recommended no action be taken.  

8.  On 20 July 2001, the applicant was provided a copy of the ODCSPER advisory opinion in order to be given the opportunity to respond.  To date she has failed to do so. 

9.  Army Regulation 601-210 prescribes the policy and procedure for enlistment in the Army.  Paragraph 2-20 contains guidance on enlistment pay grades for personnel without prior service and states, in pertinent part, that if an applicant participates in the Army Referral Program and referred a qualified candidate that was received and verified prior to the date of enlistment, will be enlisted in pay grade E-2.  Verification of the referral is the responsibility of USAREC for all referrals, who will develop procedures to document and enclose verification of referrals in enlistment files.  It further indicates that only referrals received and verified prior to the date of enlistment will effect the enlistment grade. 

CONCLUSIONS:

1.  The Board notes the recommendation contained in the ODCSPER advisory opinion, which recommends the applicant not be advanced or provided back pay because she failed to provide sufficient documentation in a timely manner.  While the Board understands the basis for this recommendation, it finds there is a more compelling equity basis for granting the requested relief.

2.  The evidence of record confirms that the applicant met the referral requirement necessary to qualify to enlist in the rank and pay grade of PV2.  This is confirmed in the MOR provided by the Recruiting Station Commander responsible for the enlistment of the applicant and the individual she referred.  By regulation, this authorized the applicant to enter active duty in the rank and pay grade of PV2.

3.  It appears that there was a failure on the part of USAREC officials to document the applicant’s referral prior to her entering active duty, as is required by regulation.  In the opinion of the Board, the applicant should not be held accountable for this failure to follow proper procedure.  Therefore, in the interest of justice and equity, the Board concludes that the applicant’s PV2 promotion effective date and date of rank should be changed to the date she entered active duty, 10 September 1999, and she should receive all back pay and allowances due as a result. 

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the PV2 promotion effective date and date of rank of the individual concerned as 10 September 1999, and by providing her all back pay and allowances due as a result.

BOARD VOTE:  

__RVO___  __ENA__  __TEO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2001058633	
SUFFIX		
RECON		
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0100	
2.		
3.		
4.		
5.		
6.