RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            FEBRUARY 10, 2004
	DOCKET NUMBER:   AR2003089574

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda M. Baker		Member	
	Mr. Richard T. Dunbar		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 his date of rank (DOR) for promotion to the pay grade of E-6 be adjusted to 9 May 2001.

2.  The applicant states that he was told in writing by Army recruiting officials that he could retain his pay grade of E-6 if he separated from the Marine Corps and enlisted in the Army in a timely manner.  Accordingly, after verifying this information from a second Army recruiting source, he separated from the Marine Corps and proceeded 3 days later to enlist in the Army.  However, when he enlisted, he was only authorized to enlist in the pay grade of E-5.  Knowing that he had no job or insurance for his family, he elected to accept enlistment as an E-5 and pursue the matter through the appropriate chain of command.  However, to date there has been no resolution to the issue of the Army honoring its commitments.  While he has since been promoted back to the pay grade of E-6, he lost hundreds of dollars a month that otherwise would have been used to support his family, simply because he believed that the Army would honor its commitment to him.  

3.  The applicant provides a copy of his report of separation (DD Form 214), a copy of the email he received from a "Cyber" recruiter informing him that he would retain his rank, a copy of his congressional inquiry and certificates of training. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Marine Corps on 21 August 1989 and was promoted to the pay grade of E-6 on 1 July 1997.  He continued to serve until he was honorably discharged in the pay grade of E-6 at Camp Lejeune, North Carolina, on 9 March 2001, due to the expiration of his term of service.  He had served 11 years, 6 months and 19 days of total active service.

2.  On 21 March 2001, officials at the Total Army Personnel Command granted authorization for the applicant to enlist in the pay grade of E-5.

3.  The applicant enlisted in the Regular Army on 10 May 2001 for a period of three years, enlistment in the pay grade of E-5, and training as a chemical operations specialist.

4.  He completed his training at Fort Leonard Wood, Missouri, and was transferred to Fort Carson, Colorado.  He was promoted to the pay grade of E-6 on 1 March 2002.

5.  The applicant provides copies of emails from both a "Cyber" recruiter and a recruiting station commander which confirm the applicant's contention that he was informed that if he left the Marine Corps he could enlist in the Army in the same grade, provided he did so in a timely manner.  The email from the "Cyber" recruiter is dated 3 January 2001, 2 months prior to the applicant's discharge from the Marine Corps. 

6.  Army Regulation 601-210 governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army.  It provides, in pertinent part, that prior service personnel desiring to enlist, who were previously separated in the pay grade of E-6, will have their enlistment grade and eligibility determined by the Department of the Army Human Resources Command – Alexandria (HRC – Alexandria), prior to enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that information was provided to the applicant by the Department of the Army recruiting officials prior to his discharge from the Marine Corps, which resulted in the applicant making a decision to be discharged from the Marine Corps and enlisting in the Regular Army. 

2.  However, after being discharged from the Marine Corps in the pay grade of  E-6 and attempting to enlist in the Regular Army approximately 4 days later, he was subsequently informed, prior to enlistment, that he was only approved for enlistment in the pay grade of E-5, which was contrary to the information he had previously been given.

3.  While it is apparent that the applicant could have declined to accept the grade determination to the pay grade of E-5, the applicant accepted the offer and enlisted in the pay grade of E-5, in order to continue to provide for his family and be able to pursue the matter further, which is evidenced by his supporting documents.

4.  Although the evidence does not show whether the Department of the Army official who made the grade determination was informed at the time that the applicant had separated from the Marine Corps based on previous information provided by recruiting officials, the fact remains that the applicant relied on that information to his detriment and it resulted in his losing a pay grade and all of the benefits associated with the loss.

5.  The applicable regulations provide that grade determinations are made by the HRC – Alexandria for prior service applicant's and while enlistment in the pay grade of E-6 is authorized, such determinations are made by the HRC – Alexandria, based on the needs of the Army at the time of enlistment.  Accordingly, the recruiting officials that informed the applicant that he could enlist in the pay grade of E-6, failed to coordinate with the agency that makes such determinations and failed to advise the applicant that such determinations were made based on the needs of the Army at the time.  In any event, the information provided to the applicant amounted to a commitment by the Army.

6.  Accordingly, the evidence suggests that it would be in the interest of justice for the Army to honor its commitment to the applicant by granting his request to have his records corrected to show that he enlisted in the pay grade of E-6 with a DOR effective the date he enlisted, with entitlement to all back pay and allowances from the date of enlistment.

BOARD VOTE:

rtd__  ___  jns___ __  lmb_____  GRANT RELIEF 
 
________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he enlisted in the pay grade of E-6 on 10 May 2001, with a DOR of 10 May 2001, and entitlement to all pay and allowances from that date.  

		__     _John N. Slone____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089574	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040210	
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.  224	112.0200/GRADE/DOR	
2.		
3.		
4.		
5.		
6.