PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           22 June 2000                  
	DOCKET NUMBER:   AR1999029996

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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 restored to the rank and pay grade of Sergeant E-5, and that his separation code and reentry code on his DD Form 214 be changed.

3.  The applicant states that he was a Reserve soldier who enlisted in the Regular Army on 28 May 1998 for training as a combat engineer, MOS 12B.  However, after talking with the USAREC liaison NCO at Fort Leonard Wood, Missouri on 2 June 1998, and learning that after his training as a combat engineer, he would stand a good chance of being assigned to Korea, he opted, as recommended by that NCO, to execute a new enlistment contract, and enlist as a practical nurse, MOS 91C10, a MOS in which he was qualified.  He also agreed to an assignment to Fort Campbell, Kentucky.  Because he had originally enlisted for training as a combat engineer, he was required to enlist in pay grade E-4, a reduction from his pay grade of E-5 that he held as a Reserve soldier prior to his Regular Army enlistment.  After his discharge from active duty because of a defective enlistment agreement on 18 August 1998, he enlisted in the Army Reserve for six years in pay grade E-4.  He states that he had no break in service, should have retained his rank and pay grade of Sergeant E-5, and should not be saddled with the unfavorable separation code and reentry code on his DD Form 214.  Since his enlistment in the Army Reserve he has been erroneously paid in pay grade E-5, despite his continued efforts to notify officials of the overpayments.  He is indebted to the government in excess of $1,000.00.    
4.  The applicant’s military records show that he was promoted to Sergeant E-5 by the 102nd Army Reserve Command on 1 July 1994.  Assigned to the Army Reserve Control Group, on 6 June 1997 he requested a conditional release in order to enlist in the Regular Army.  His request was approved and he enlisted in the Regular Army for 3 years in pay grade E-4 on 28 May 1998.  His enlistment contract (USAREC Form 978) shows that he enlisted for training in MOS 12B10, combat engineer. 

5.  On 2 June 1998 the applicant requested enlistment in the Regular Army, in his former MOS, stating that he understood that he had to comply with the statement of understanding, which was attached to that request.  A DA Form 3286-64, which he submits, shows that he enlisted for his former MOS of 91C10, practical nurse, and that he would require no training.  An order published by the Military Entrance Processing Station at St. Louis shows that he was assigned to Fort Leonard Wood for 6 weeks training in MOS 12B10.  An order published on   15 June 1998 by Headquarters, United States Army Engineer Center at Fort Leonard Wood assigned him to Fort Campbell with a reporting date of                  22 June 1998.  His MOS on that order is shown as 91C10.  

6.  On 23 June 1998 he requested assistance from a Judge Advocate General Corps legal officer, outlining the circumstances of his enlistment and ensuing events.
7.  On 25 June 1998 he provided an NCO with information which he considered relevant to his request for separation from the Army for breach of contract.

8.  The applicant was supported in his endeavor to be discharged by a chaplain, and by a Fort Campbell legal assistance officer.

9.  The applicant was discharged in pay grade E-4 on 18 August 1998 with an honorable characterization of service.  He was discharged because of a defective enlistment agreement under the provisions of Army Regulation 635-200,            chapter 7, section IV.  His separation code on his DD Form 214 is “KDS” and his reentry code is “3”.  He had 2 months and 21 days of service. 

10.  The applicant enlisted in the Army Reserve for 6 years on 17 August 1998 in pay grade E-4.  A 15 December 1998 leave and earning statement (LES) shows that he was receiving pay as a Reserve soldier in pay grade E-5.

11.  On 9 September 1999 the applicant submitted a letter to the comptroller of the 89th Regional Support Command concerning overpayment of funds made to him because of incorrect pay grade information.  A 4 October 1999 LES shows that he was receiving pay in pay grade E-4, and that he was indebted to the government.  On 21 October 1999 he requested a waiver of an erroneous payment, after receiving a notice of indebtedness in the amount of $1,617.87.
On 28 October 1999 he applied for a waiver of erroneous payment.  The amount of erroneous payment is shown as $2540.26.  His commanding officer supported him in this endeavor.

12.  Information received from an official of the Enlistment Eligibility Section of the Total Army Personnel Command (PERSCOM) on 6 June 2000 revealed that 
at the time of the applicant’s enlistment in the Regular Army MOS 12B was at      106 percent of its authorized strength in the grade of E-5, and that MOS 91C was at 192 percent of its authorized strength in that grade.  That person further stated that an applicant could not be enlisted in an overstrength MOS, in that a vacancy must exist in the enlistment MOS and grade.

13.  Army Regulation 635-200, chapter 7, section IV, pertains to defective enlistment agreements, and states in pertinent part, that a defective enlistment agreement exists when the soldier was eligible for enlistment in the Army but did not meet the prerequisites for the option for which enlisted.  The situation exists because of (1) a material misrepresentation by recruiting personnel, upon which the soldier reasonably relied and thereby was induced to enlist for the option, or (2) an administrative oversight or error on the part of the recruiting personnel in failing to detect that the soldier did not meet all the requirements for the enlistment commitment, and (3) the soldier did not knowingly take part in creation of the defective enlistment.  When an enlistment is defective or cannot be fulfilled a nonprior Regular Army soldier serving on first enlistment may request immediate discharge.  A soldier separated because of a defective enlistment will be awarded an honorable character of service.

14.  Army Regulation 601-210, paragraph 3-22, concerns reentry eligibility codes, and states in pertinent part that reentry code “RE-3” applies to a person who is not fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  Paragraph 4-9 states that a waiver is required for any applicant who was discharged for a defective enlistment.  The approval authority for enlistment in the Army Reserve is the commanding general of the Army Reserve Command.

15.  Paragraph 3-18 of that regulation states that a former enlisted member, either Active or Reserve Component, who enlists in the Army Reserve within       30 months from last separation will be enlisted in grade held at time of last separation.  Applicants with prior service who enlist within 24 months after discharge will be given a date of rank of original date of rank plus elapsed time since discharge. 

16.  Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Table C-2 of that regulation shows that a soldier who is separated under the provisions of Army Regulation 635-200, chapter 7, section IV, because of a defective enlistment agreement, will have an SPD code of “KDS” entered on his DD Form 214.
    
CONCLUSIONS:

1.  The applicant did not meet the prerequisites for the option for which he enlisted, and he was discharged because of a defective enlistment.  The specific reasons that his enlistment was determined to be defective are unknown.  Nonetheless, his enlistment in pay grade E-4 was correct, in both MOS 12B and 91C.  He could not have been enlisted in pay grade E-5, the grade he held in the Army Reserve prior to his Regular Army enlistment.  Both specialties were overstrength.  The applicant himself agreed to a change in his enlistment option, consenting to enlist in MOS 91C, one of the specialties for which he was qualified.  

2.  However, a defective enlistment, by definition, is a misrepresentation, or an administrative oversight or error on the part of recruiting personnel.  Had he been found not to have met the prerequisites for the option for which he enlisted, he might not have enlisted in the Regular Army, or he might not have been eligible for enlistment in the Regular Army,  and he would have remained in the Army Reserve in his pay grade of E-5.  Although there is some speculation in this respect, the Board believes this to be more true than not true, and that any doubt must be resolved in favor of the applicant.  An injustice exists.   
3.  Nevertheless, his discharge for a defective enlistment under the provisions of Army Regulation 635-200, chapter 7, section IV, is correct, as is his reentry code and his separation (SPD) code.  He was able to enlist immediately in the Army Reserve after his discharge from the Regular Army, obviously encountering no problem with enlistment because of those codes.  

4.  Thus, in order to correct the injustice done him, his record should be corrected to show that he enlisted in the Army Reserve on 17 August 1998 in pay         grade E-5 with a date of rank of 1 July 1994, the same date of rank that he had in that pay grade prior to his Regular Army enlistment.  The applicant should receive all due pay and allowances in pay grade E-5 from the date of enlistment in the Army Reserve.

5.  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 showing that the applicant enlisted in the Army Reserve on            17 August 1998 in pay grade E-5 with a date of rank of 1 July 1994, and that he receive all due pay and allowances in pay grade E-5 from 17 August 1998.

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

BOARD VOTE:  

___lls___  ___aao__  ___ra___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999029996	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
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.  189	110.00	
2.	112.02	
3.	128.00	
4.		
5.		
6.