MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 March 2002                  
	DOCKET NUMBER:   AR2002075717

	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. W. W. Osborn, Jr. 		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Frank C. Jones, II 		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 date of rank be changed to 10 April 2001, the date he entered the Army.

APPLICANT STATES:  In effect, that sending him, an Reserve Officer Training Course graduate, to basic combat training and to Officer Candidate School (OCS) was an error and an injustice.   He submits his application for commission with supporting documents.  These include:  A 13 July 2000 letter from the former Professor of Military Science at Austin Peay University, Clarksville, Tennessee concerning his efforts to help the applicant obtain a commission, and; an 11 December 2001 memorandum form the Inspector General (IG), Recruiting Command.

COUNSEL CONTENDS:  Counsel offers no evidence or argument beyond that submitted with the application.

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

The applicant, a former noncommissioned officer in the German Army from 1987 to 1996, immigrated to the United States.  He earned a Bachelor of Science and completed ROTC requirements at Austin Peay University, Clarksville, Tennessee in May 1999 but could not be commissioned since he was not an American citizen.  

He became a naturalized citizen on 23 June 2000, enlisted on 10 April 2001 and applied for OCS on 5 September 2001.  He completed OCS and  was commissioned on 11 October 2001.  His date of rank as a second lieutenant was established as 11 October 2001, the date he was commissioned.

The 13 July 2000 letter from the former Professor of Military Science at Austin Peay states in pertinent part "we now know that his only option is to be considered for a direct commission."

The 11 December 2001 memorandum from the IG, Recruiting Command, states, in effect, that no error had been made during the enlistment process because recruiters were not trained in nor required to possess any knowledge of direct appointment commissioning requirements.

During the processing of this case, an advisory opinion was obtained from the Total Army Personnel Command.  It noted that the enlisted service is not an authorized adjustment to date of rank and recommended that the applicant's request be denied.

In rebuttal to the advisory opinion the applicant maintains that the Recruiting Command IG admitted that a mistake was made by his enlistment.  He maintains that "According to the Deputy Chief of Staff of Army Personnel, was this procedure was not only incorrect, but against Army Regulations.  Applicants that have completed 'one pre-commissioning track' such as ROTC, are no longer eligible to complete another, such as OCS."  Therefore, even though he attended OCS he required a waiver from the Deputy Chief of Staff of Army Personnel in order to receive a commission.

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.  There is no available evidence to show that the applicant was misled or induced to take some course of action though being furnished faulty information.

2.  The 13 July 2000 letter from the former Professor of Military Science indicates that, at least as early as that date, the applicant was aware of the path open to him, yet he chose to enlist and apply to OCS.

3.  As far as can be determined, the applicant voluntarily enlisted.  He also voluntarily accepted a commission with a date of rank based upon the date of his commissioning.  The Board concludes no error or injustice occurred. 

4.  There is no available evidence to show that, based on the needs of the Army, the applicant would have received a direct appointment at the time he enlisted, that he would have been commissioned at all had he not completed OCS or that he would have received a concurrent call to active duty had he not followed the course he actually took. 

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

6.  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

__WTM _  _LDS ___  __FCJ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002075717	
SUFFIX		
RECON		
DATE BOARDED	30030306	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.