RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            08 JANUARY 2004                  
	DOCKET NUMBER:   AR2003087868

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Linda M. Barker		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that a 1999 Declination of Continued Service Statement be expunged from his Official Military Personnel File (OMPF).

2.  The applicant states that he has reenlisted twice since signing the statement in 1999.  He states that at the time he signed the statement he had personal reasons for doing so.  He states that in August 2000 his retention noncommissioned officer at Fort Bliss, Texas, told him that the statement was not in his file and that it had been lost.  In October 2000 he reenlisted.

3.  The applicant maintains that he is a dedicated career soldier and believes that the statement may hinder his advancement and ability to compete with his peers.

4.  The applicant provides copies of his October 2000 and October 2001 reenlistment contracts.

CONSIDERATION OF EVIDENCE: 

1.  Records available to the Board indicate that the applicant entered active duty, for a period of 4 years, on 21 July 1993.  On 1 April 1997 he was promoted to pay grade E-5 and on 3 April 1997, while assigned to Fort Bliss, Texas, he reenlisted for a period of 4 years.  Included as part of his reenlistment contract was an assignment to Europe.

2.  The applicant’s records indicate that he arrived in Europe in April 1998 and executed a 1 month extension of his April 1997 reenlistment contract in order to have the required service remaining to complete a “with dependents tour” in Europe.  With the execution of his 1-month extension, the applicant’s separation date (ETS) was scheduled for 2 May 2001.

3.  On 30 November 1999, while still assigned to an organization in Europe, the applicant signed a Declination of Continued Service Statement after being notified that he had been selected for recruiting duty, which carried a requirement for him to have at least 36 months of service remaining as of 4 June 2000.  Based on his scheduled separation date (2 May 2001), the applicant would have had less than 12 months of service remaining on 4 June 2000.

4.  Included in the declination statement was an acknowledgement that the applicant understood that by signing the statement he would be placed in a nonpromotable status, prohibited from reenlisting or extending his service contract, that he would be removed from any promotion standing list, and that he would be precluded from returning to military service for a period of 93 days after separating on his normal ETS date.  The applicant, his career counselor, and his unit commander authenticated the declination statement.  The statement is filed on the performance portion of his OMPF.

5.  It appears that the applicant departed Europe in April 2000 and was awarded an Army Commendation Medal for his service in Europe between April 1998 and April 2000.  Upon his return to the United States, he was, once again, assigned to Fort Bliss, Texas.

6.  On 4 October 2000 the applicant requested reenlistment.  His commander recommended approval of the applicant’s request and noted that he was “fully qualified….”  The applicant executed a 2-year reenlistment contract that same day.  His 4 October 2000 reenlistment action changed his ETS date from 2 May 2001 to 3 October 2002.

7.  On 1 December 2000 the applicant was promoted to pay grade E-6.

8.  The applicant executed his third reenlistment action on 18 October 2001.  At the time of his last reenlistment the applicant was still assigned to Fort Bliss.  The reenlistment was for a period of 5 years and included a reenlistment option for an assignment to Europe and a monetary reenlistment bonus.

9.  The applicant is currently assigned to the 52nd Air Defense Artillery in Europe, the same organization he was assigned to at the time he executed his November 1999 declination statement.

10.  The applicant’s performance evaluation reports have consistently noted that he was a fully capable Soldiers and on several occasions he has been rated “among the best” by his evaluators.  His records indicate that he has one Army Commendation Medal and numerous Army Achievement Medals.

11.  Army Regulation 601-280 (Army Retention Program) states that Soldiers with 4 or more years of service for pay purposes at ETS, must take action to meet service remaining requirements when such a requirement is a prerequisite for deployment, service school attendance, selection for special assignment and semi-centralized promotion.  Soldiers eligible, but refusing to take action to satisfy military service remaining requirement will be denied further service with the execution of a Department of the Army Form 4991-R (Declination of Continued Service Statement).  Once executed a “9Q” (immediate reenlistment prohibition code) is reported via SIDPERS (Standard Installation/Division Personnel System).  The original declination statement is forwarded for permanent filing in the Soldier’s OMPF, a duplicate copy is filed in the Soldier’s 

Military Personnel Records Jacket, and a copy is provided to the Soldier’s branch at the United States Army Human Resources Command-Alexandria.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reduction) states that Soldiers promoted to pay grade E-6 must have 12 months of service remaining at the time of promotion.  

13.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) states that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another part of the fiche unless directed by an appropriate agency, including this Board.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant executed a declination of continued service statement in 1999 in order to decline an assignment as an Army recruiter. As a result of the execution of that statement the applicant should have been placed in a nonpromotable status, removed from a promotion standing list or precluded from being considered for promotion, and been denied reenlistment at a future date.

2.  In spite of having executed such a statement, the applicant was permitted to reenlist and was promoted to pay grade E-6 shortly after reenlisting.  His contention that his retention noncommissioned officer told him the statement was not in his file and had been lost should not excuse the fact that the applicant knew he had executed such a statement and as such was not eligible for reenlistment or promotion.

3.  By executing the declination statement, the applicant avoided being assigned as a recruiter, which meant another Soldier was assigned in place.  He should not now be further rewarded by removing the statement from his file which was properly executed and filed at the time, in spite of the fact that he has been permitted to reenlist twice since executing the declination statement.  Such an action would result in placing the applicant on a level playing field with other Soldiers who did not avoid assignments by executing declination statements, even though such Soldiers may also have had “personal reasons” for wishing to avoid a particular assignment.  

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KAN __  __JTM __  __LMB __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		__Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID	AR2003087868	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040108	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.