PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            16 December 1999
	DOCKET NUMBER:   AR1999031999

	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. Loren G. Harrell		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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 he be promoted to the rank and pay grade of staff sergeant/E-6 (SSG), with a date of rank (DOR) that reflects his prior service, and that he receive back pay from 17 March 1999.

3.  The applicant states, in effect, that while preparing to reenter the Army, he signed a statement of understanding (USAREC Form 98-E-R) which indicated that his reentry grade would be SSG.  On 17 March 1999, upon his arrival at the Military Entrance and Processing Station (MEPS) to depart on active duty he was told there were no SSG slots available and that he could only go on active duty in the rank and pay grade of sergeant/E-5 (SGT).  He also states, based on the drastic actions he had taken to reenter the Army and the related financial concerns, that he elected to reenter the Army as a SGT in spite of the error.  Finally, he claims this action was taken under duress because he felt it was the only available option.  He includes with his application, a memorandum from a military legal assistance attorney in support of his application.  Counsel suggests, in effect, that the applicant’s reenlistment contract is defective and requires correction, and on that basis the applicant should be provided appropriate compensation.  Counsel also indicates that the applicant was provided a statement of understanding, dated 11 February 1999, which reserved a slot for his reenlistment as a SSG.  These documents prepared in order to effect the applicant’s enlistment, in the opinion of counsel, created a promise to the applicant that he would be reenlisted in the rank of SSG with a corresponding slot.  Relying on this promise, the applicant sold his personal business, rented his home, and arranged to move his family to Fort Stewart, Georgia.  When the applicant reported to MEPS, to depart for active duty, he was told that there was no longer a SSG slot.  At this time the applicant explained that he had prior service as a SSG and had been promised a slot in that grade.  The applicant, given the actions he had taken in preparation for reentering the Army, felt compelled to accept the only option offered him at this time, which was that he reenter active duty as a SGT.  Counsel also comments that SSG slots were available and that applicant was reenlisted under false pretenses and is currently serving in the Regular Army as a SGT.  Counsel further states that the applicant wishes to continue in the Regular Army; however, on behalf of the applicant, he requests that the applicant be immediately promoted to SSG, that his DOR be adjusted to reflect his prior fifteen months of service at the rank of SSG; and that he be awarded the difference in pay between a SGT and a SSG beginning on the date of his reenlistment.

4.  The applicant’s military records show that he served on active duty for 
10 years, 5 months, and 11 days until being released honorably on 27 July 1998, in the rank of SSG, based on the normal expiration of his term of service (ETS).  

5.  On 11 February 1999, the applicant and his recruiter signed a statement of understanding (USAREC Form 978-R-E) that indicated, in pertinent part, that if the applicant remained fully qualified for enlistment into the Regular Army, which was scheduled for 17 March 1999, he had reserved the right to enlist for Option 18 (former military occupational specialty (MOS) 96R3 (Ground Systems Operator).  Additionally, the statement of understanding showed that the applicant’s reporting date for active duty was 17 March 1999; that his enlistment in the Regular Army would be for 3 years; and that his active duty grade would be SSG, which had been determined in accordance with Army Regulation 
601-210.

6.  On 11 February 1999, the applicant and his recruiter also signed an additional statement of understanding.  This one indicated that the applicant would enter on active duty as a SSG, in accordance with Paragraph 3-17, Army Regulation 
601-210, and that his DOR would be established at his first duty station under the provisions of Army Regulation 600-20.  

7.  On 17 March 1999, when the applicant reported to enter on active duty, he was advised that he could not reenter the Regular Army as a SSG.  A DD Form 1966/3 was prepared that showed the applicant had been only been authorized to reenter active duty as a SGT.  This authorization was given by a master sergeant from the Eligibility Inquiry Section (EIS) of the Army’s Personnel Command (PERSCOM).  Further the record shows the applicant, after being notified of this change, elected to continue on with his reenlistment into the Regular Army and to depart for active duty in the rank of SGT.  

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes the eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Paragraph 3-17, provides guidance on awarding an enlistment pay grade for applicants with prior military service who are enlisting into the Regular Army.  It states, in pertinent part, that PERSCOM would establish the grade in which prior service applicant’s could reenter the Regular Army.  This authority rested with PERSCOM if the applicant had previously held the rank of SSG or above and they had previously served not more than 17 years but less than 20 years of active Federal service.

9.  Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command.  It also provides guidance covering the precedence of rank.  Paragraph 3-4 (DOR, enlisted soldiers) states, in pertinent part, that the DOR for former enlisted soldiers, entitled to reenlistment, who reenlist in the Regular Army is a date preceding the reenlistment date by a period equal to the length of time previously served on active duty in the same or a higher grade than that in which they reenlisted.  

CONCLUSIONS:

1.  The evidence of record shows the applicant was promised by his recruiter that he would be allowed to reenlist in the rank of SSG.  Although this promise was erroneous and by regulation, the proper authority level, for granting grade determinations on former SSG’s, was PERSCOM, this does not alter the fact that the applicant, based on a signed statement of understanding which he had a right to expect was a contractual obligation, made irreversible life decisions.  In the opinion of the Board, these decisions were so financially significant that the applicant felt compelled to reenlist to avoid further hardship, even after he had been advised that he would have to reenter the Regular Army as a SGT.

2.  Additionally, the Board found that the inappropriate promise made by the recruiter resulted in an injustice being served on the applicant that should be corrected at this time.  Therefore, the Board concludes, as an exception to policy and in the interest of equity, that the applicant’s enlistment contract should be corrected to show that he reentered the Regular Army in the rank of SSG, effective 17 March 1999.

3.  The Board also determined, based on the guidance of Army Regulation 
600-20, that the applicant’s DOR to SSG should be adjusted.  His DOR should be established as the date arrived at after subtracting the total time he served in the rank of SSG during his prior service from his reenlistment date of 17 March 1999.

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:

	a.  by correcting the enlistment contract of the individual concerned, dated 17 March 1999, to show he reentered the Regular Army in the rank and pay grade of SSG/E-6; and 

	b.  by providing the individual concerned any back pay and allowances due based on the difference between the rank and pay grade of SGT/E-5 and SSG/E-6, effective 17 March 1999; and 

c.  by adjusting the SSG DOR of the individual concerned, by subtracting the time he served as a SSG during his previous enlistment from the date he reentered into the Regular Army on 17 March 1999.  

BOARD VOTE:  

___sk ___  __fkm___  ___rvo __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______Fred K. McCoy_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999031999	
SUFFIX		
RECON		
DATE BOARDED	1999/12/16	
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.  310	131.0000	
2.		
3.		
4.		
5.		
6.