MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            6 July 2000                  
	DOCKET NUMBER:   AR1999033659

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his military record be corrected to show that on 22 September 1998 he enlisted into the Regular Army at the pay grade of E-6.

APPLICANT STATES:  That while serving in the Army National Guard (ARNG) he achieved pay grade E-6.  During the process for enlisting into the Regular Army the recruiter told him that Department of the Army would not grant him equivalent credit for attending a reserve component basic noncommissioned officer course (BNCOC).  Therefore, he was informed he had to enlist at the lower grade of E-4.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the ARNG on 28 November 1989, then received training as an infantryman and was eventually promoted to staff sergeant.  He was separated from the ARNG on 21 September 1998 and enlisted into the Regular Army on 22 September 1998 for a three year enlistment.

U.S. Army Recruiting Command Form 978 (Statement of Understanding Regular Army Enlistment Delay for Applicants with Prior Service or an Existing Military Service Obligation) reflects that the applicant was enlisted as an E-4/SP4.

Department of Defense Form 1966/3 (Record of Military Processing – Armed Forces of the United States) reflects a note that reads: -“per conversation with a staff member Personnel Command (PERSCOM) Eligibility Inquiry Section no vacancy in pay grade E-6 or E-5; soldier may process as pay grade E-4 provided he is otherwise qualified.”

In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff for Personnel, Assistant Army Recruiting Policy NCO, Recruiting Branch.  It concluded that based on a review of the records submitted and the vacancies at the time of enlistment there were no E-6 vacancies in the applicant’s military occupational skill.  However, it also recommended that the applicant be promoted to the rank/grade of SSG/E-6 with a date of rank of 1 April 2000, with no retroactive pay.  The advisory opinion was provided to the applicant for comment but no response has been received as of this date.

Army Regulation 601-210 provides, in pertinent part, that an applicant who was last separated from any Component or is a current member of a Reserve Component in grade, E-5 with not more than 10 years active Federal service or E-6 with not more than 17 years active Federal Service will have the enlistment grade and eligibility determined by the Commanding General, U.S. Total Army Personnel Command (PERSCOM). 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The DD Form 1966/3 shows that the applicant was denied enlistment into the Regular Army at pay grade E-6 or E-5 because there were no vacancies at those pay grades at the time of his enlistment.  There is no evidence the denial was due to the non-acceptance of the applicant’s BNCOC certificate.

2.  The evidence of record shows that the applicant was properly enlisted in the Regular Army on 22 September 1998 in pay grade E-4 under the provision of Army Regulation 601-210, chapter 3, paragraph 17.

3.  The PERSCOM Eligibility Section was properly contacted at the time of the applicant’s application for enlistment for the Regular Army.  PERSCOM confirmed, per authority of AR 601-210, that there were no vacancies at the time of his enlistment for grade E-6 or E-5 and also determined that he could be enlisted in pay grade E-4.  The Board notes the applicant’s contentions; however, there is no basis for granting his request.  After all, he accepted the terms of the contract, which included enlistment in pay grade E-4.

4.  The Board cannot agree with the reasoning contained in the DCSPER advisory opinion.  The opinion recommends promotion of the applicant, but does not indicate that any regulatory error or unjust decision was made in the grade determination process.  Therefore, there is no basis for this Board to accept the recommendation.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cmf ___  __emw __  ___jpi___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999033659	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000706	
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.	129.05	
2.		
3.		
4.		
5.		
6.