IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20220006929 APPLICANT REQUESTS: in effect – * multiple corrections of her National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service), 4 June 1994 and 2 December 1996 * retroactive Student Loan Repayment Program (SLRP) payment from the North Carolina Army National Guard (NCARNG) * correction of her pay grade and rank when she enlisted in the Regular Army * retroactive payment based on correction of her pay grade and rank in the Regular Army APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 5261-4-R (SLRP Program Addendum), 27 March 1992 * NGB Forms 22, 4 June 1994 and 2 December 1996 * NCARNG Orders Number 27560-0506 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 18 May 2000 * Orders Number 204-00236, 23 July 1993 * Federal Student Aid and student loan(s) documents * A copy of Army Regulation (AR) 601-210 (Regular Army and Army Reserve Enlistment Program), 28 February 1995 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She is requesting to correct her NGB Forms 22 to show in: * Item 10b (Prior Reserve Component Service) the correct total active federal service that was completed prior to her separation from the Army National Guard (North Carolina) * Item 12 (Military Education) "Finance Specialist, 8 wks, Sep 93"; as it took her 8 weeks to complete the training not 7 weeks * Item 13 (Primary Specialty Number, Title and Date Awarded) "73C10" * Item 15 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded This Period) the addition of the Humanitarian Service Medal/Army Reserve Components Achievement Medal (ARCAM)-2, Reserve Good Conduct Medal, North Carolina State Active Duty Ribbon/Medal, North Carolina National Guard Governor's Unit Citation b. She would also like for the NCARNG to hold up their end of her enlistment contract in regards to her entitlement contract Appendix C, SLRP Addendum. She understands that she did not fulfill her contract obligation of 6x2. However, she did serve a total of 4 years, 8 months, and 6 days. In accordance with the enlistment contract, "as stated in the attached Appendix C, Section IV - Obligation, Section V - Entitlement. She is requesting the Government act in good faith and make a payment to the Department of Education on her student loans with interest as stated in the contract. She served faithfully and dutiful, her tour of duty up until her departure to active duty. She humbly requests this wrong be made right as to show an accurate depiction of her military service in the NCARNG. c. She further requests the correction of item 4a (Grade, Rate, or Rank) to show SPC on her DD Form 214 ending on 18 May 2000. She also requests correction of item 4b (Pay Grade) to show E-4. She requests correction of all records, Department of Veterans Affairs records, automated systems, and to be issued a DD Form 215 (Correction to DD Form 214) reflecting the changes in grade and rank. In accordance with AR 601-210, chapter 2, section 2-12b, chapter 3, section 3-10, section 3-10a3, section 3-16a 10 and section 3-17a 2 and section 3-17b 2. d. In addition, she is requesting retroactive pay and allowances with interest from the date of her enlistment on active duty, if the requested corrections in this case are found to be favorable. Her military enlistment was poorly executed by the Raleigh North Carolina Military Entrance Processing Station Command. The multiple DD Forms 149 can be reviewed in the supporting documents. 3. The applicant requested that her NGB Forms 22 be corrected to show her correct dates of enlistment; military education, MOS, separation dates; record of service; and additional awards, including State awards. She has also requested SLRP payments. She must submit her request to the National Guard Bureau, Arlington, Virginia, or State Adjutant General (NCARNG) for correction of her Army National Guard (ARNG) forms and SLRP payment(s). The ABCMR will not consider correcting ARNG forms or payments until the applicant has exhausted all administrative remedies. She must provide denial letters and/or documents from the NCARNG State Adjutant and/or NGB showing she submitted a request for correction of her records. Therefore, this portion of the applicant's request will not be considered in these Proceedings. 4. A review of the applicant’s military record shows the following: a. On 27 March 1992, she enlisted in the North Carolina Army National Guard (NCARNG) under the split-option program. b. She was ordered to Initial Active Duty for Training (IADT) for completion of basic combat training with a report date of 16 June 1992. A letter from Headquarters, U.S. Army Training Center and Fort Jackson shows she entered IADT on 16 June 1992 and was released from active duty (REFRAD) on 21 August 1992. She completed 2 months and 6 days of active service, but she was not issued a DD Form 214 during this period because it was less than 90 days. c. She was again ordered to IADT for completion of military occupational specialty (MOS) training with a report date of 14 June 1993. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she entered IADT on 14 June 1993. She completed training and was awarded MOS 73C (Finance Specialist). She was honorably REFRAD and transferred to her NCARNG unit on 2 September 1993. d. On 4 June 1994, NGB Form 22 shows in: * Item 4 (Date of Enlistment) – 27 March 1992 * Item 5a (Rank) – SPC [specialist] * Item 5b (Pay Grade) – E4 * Item 6 (Date of Rank) – 20 December 1993 * Item 8b (Effective Date) 4 June 1994 e. On 14 November 1996, DA Form 4187 (Personnel Action) shows the applicant requested to enlist in the Regular Army and her request was approved on 22 November 1996. f. On 2 December 1996, the applicant was issued a second NGB Form 22 which shows she was discharged from the Army National Guard (NCARNG) for enlistment into the Regular Army. In pertinent part, it shows in: * Item 4 (Date of Enlistment) – 27 March 1992 * Item 5a (Rank) – SPC [specialist] * Item 5b (Pay Grade) – E-4 * Item 6 (Date of Rank) – 20 December 1993 * Item 10a (Net Service This Period) – 4 years, 8 months, and 6 days * Item 10d (Total Service for Pay) – 4 years, 8 months, and 6 days * Item 18 (Remarks) – she had Active Federal Service from 16 June 1992 to 21 August 1992 and 14 June 1993 to 2 September 1993 g. On 3 December 1996, DD Form 4 (Enlistment/Reenlistment Document) shows the applicant enlisted in the Regular Army for a period of 4 years in the pay grade of E-3 (private first class/PFC). h. On 2 June 1997 – * NGB Form 23A (Army National Guard Current Annual Statement) shows the applicant’s highest rank held was SPC/E-4 and she earned a total of 286 active points, 551 career points, 550 points for retired pay, and 4 years, 8 months, and 6 creditable for retired pay. * NGB Form 23A1 (ARNG Retirement Points Statement – Supplemental Detailed Report) shows, in pertinent part, she had Active Duty/Active Duty Training/Active Duty for Special Work beginning and ending during the following periods: * 5 to 24 June 1996; earning 20 points * 8 to 15 July 1996; earning 8 points * 16 to 31 July 1996; earning 16 points i. USAEREC Forms 3 (Statement of Service – Enlisted Personnel) computed on 25 November 1998 show the applicant completed a total of 1 year, 9 months, and 2 days of qualifying Federal service. j. On 18 May 2000, she was honorably discharged from active duty by reason of “weight control failure.” In pertinent part, DD Form 214 shows in: * Item 4a (Grade, Rate, or Rank) – PFC/E-3 * Item 12h (Effective Date of Pay Grade) – 3 December 1996 * Item 12c (Net Active Service This Period) – 3 years, 5 months, 16 days * Item 12d (Total Prior Active Service) – 11 months, 26 days * Item 12e (Total Prior Inactive Service) – 3 years, 8 months, 10 days k. On 7 August 2012, the ABCMR granted partial relief of the applicant’s request to correct her total prior active and inactive service and to be awarded the Army Good Conduct Medal on her DD Form 214 ending on 18 May 2000. The Army Good Conduct Medal was added to her DD Form 214. The applicant’s request to correct her NGB Forms 22 was premature and administratively closed based on a failure to exhaust administrative remedies with the State Adjutant General and/or NGB. 5. The applicant provides: a. DA Form 5261-4-R dated 27 March 1992 which shows she enlisted in the NCARNG for entitlement to under the SLRP in MOS 73C. b. Orders Number 27560-0506 showing she was discharged from the NCARNG, effective 2 December 1996. c. Orders Number 204-000236 issued by the U.S. Army Soldier Support Center, Fort Benjamin Harrison, IN, which shows she was awarded MOS 73C effective 2 September 1993 or upon completion of course. d. Multiple student loan(s) and Federal Student Aid documents with various dates, which show her student loan amounts, universities, institutions, and program enrollment history. e. A copy of AR 601-210 which establishes rules for grade determination based on different situations. The applicant highlights chapter 2-12 (prior military service) and chapter 3 (basic qualifications for enlistment in the Regular Army and U.S. Army Reserve, prior service applicants). 6. On 21 February 2023, the U.S. Army Human Resources Command (HRC), Chief, Enlisted Promotions Branch, provided an advisory opinion for this case and recommended denial. The advisory official stated: a. After review of the applicant’s application for correction of military records, it has been determined that her request for correction of military records should be denied. b. The applicant provided a copy of AR 601-210, dated 28 February 1995, the regulation in effect at the time the applicant enlisted into the Regular Army. In accordance with paragraph 3-2b(1), for persons enlisting in the Regular Army, applicants must have 180 days or more of active duty. Based on the NGB Form 22 that she provided, block 18 indicates that she was on active federal service from 16 June 1992 to 21 August 1992 and 14 June 1993 to 2 September 1993. These two periods are a total of 146 days. c. The applicant did not meet the criteria that allowed for her to be enlisted into the Regular Army at a higher pay grade. 7. On 7 March 2023, the applicant responded to the HRC advisory opinion and stated: a. She wanted to bring attention to the additional periods of active duty that was not added to her NGB Form 22, prior to her active-duty enrollment on 3 December 1996. The NCARNG Human Resources and the Active Guard/Reserve Unit Administrator records were not always kept in order in accordance with Army Regulations and failed to get to the department that it should have reached for her National Guard records to be correct. b. Her last period of active duty, the NCARNG Human Resources and the Active Guard/Reserve Unit Administrator failed to issue a DD Form 214 for this period, as the period of service was over the 90 days and qualified for a DD Form 214 to be issued. Review the attached orders [listed under the applicant provides] for documentation to support her additional active-duty periods. She has also listed below all periods of active duty that she was told and believes to qualify for active-duty time served. Please review the documents and period of active-duty service, as she is requesting a relook based on this additional information. c. The applicant provided multiple orders that she was issued to active duty for various reasons as follows: (1) Active Duty for Special Work (ADSW) – * 4 to 8 October 1993 * 11 to 15 October 1993 * 18 to 23 October 1993 * 1 to 5 November 1993 * 15 to 19 November 1993 * 29 November to 3 December 1993 * 6 to 10 December 1993 * 13 to 17 December 1993 * 20 to 22 December 1993 * 27 to 30 December 1993 (2) Annual Training (AT) and/or Active Duty for Training (ADT) – * 6 to 21 January 1995 * 12 to 27 May 1995 * 23 February to 8 March 1996 * 5 to 24 June 1996 * 8 July to 30 September 1996 8. On 2 August 2023, the NCARNG, Deputy G-1 provided an advisory opinion for this case and stated: a. On 2 December 1996, the applicant was honorably separated from the NCARNG, she was separated as a SPC/E-4. On 3 December 1996, she enlisted into the Regular component of the Army. She was enlisted as a PFC/E-3. b. AR 601-210 dated 28 February 1995; paragraph 3-17 establishes rules for grade determination based on different situations. * Paragraph 3-17a(2) states “for those Soldiers currently in grade SPC or above, use the appropriate grade determination rule below” * AR 601-210, paragraph 3-17b covers former regular component service * AR 601-210, paragraph 3-17c covers prior service with college credit * AR 601-210, paragraph 3-17d covers former officers * AR 601-210, paragraph 3-17e covers Regular Army prior service applicant last separated with an MOS authorized a Broken Service Reenlistment Bonus * AR 601-210, paragraph 3-17f covers former member of a Military Academy * the applicant’s situation did not fall cleanly into any of these categories c. AR 601-210, paragraph 3-17b(2) is the best fit regulatory guidance that fits the applicant’s situation. She was a graduate from IADT and had more than 12 months of service after IADT. When she reenlisted into the Active Component on 3 December 1996 it appears the recruiter should have used this rule to enlist the applicant at her current grade and then apply the rules in AR 600-20 (Army Command Policy) for date of rank determinations. d. Most likely the Recruiter did not use this rule based on their interpretation or business practice. The wording is unclear as it pertains to the applicant’s situation. In subsequent publications of AR 601-210. The current publication of AR 601-210 dated 31 August 2016 paragraph 3-16b(2) clarifies this ambiguity by specifically including current Reserve Component members and states that the application will be enlisted at the same grade as held at the time of separation. e. It seems reasonable that she should have been enlisted into the Active Component at the same grade as held on the date of separation. Because the applicant enlisted into the Regular Army the NCARNG is incapable of correcting the error. f. In conclusion, given the available evidence the following actions are recommended. The NCARNG supports the applicant in her request to have her enlistment adjusted to reflect the grade upon enlistment to be the same as the grade on the date of separation. The NCARNG also recommends that her case be addressed with the Active Component because we do not have purview over the actions taken by the Active Component of the Army. 9. On 1 September 2023, the applicant responded to the NGB advisory opinion and stated, she did not have any comments. She only had one update to her ABCMR case and that was an address change. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Joint Force Headquarters – NC North Carolina National Guard -Deputy G-1 advisory opinion, the Board concurred with the advising official finding the applicant graduate from IADT and had more than 12 months of service after IADT. When she reenlisted into the Active Component on 3 December 1996 it appears the recruiter should have used this rule to enlist the applicant at her current grade and then apply the rules in AR 600-20 (Army Command Policy) for date of rank determinations. The opine noted, the applicant should have been enlisted into the Active Component at the same grade as held on the date of separation. Based on the NGB opine, the Board determined there is sufficient evidence for correction of the applicant’s pay grade and rank when she enlisted in the Regular Army. Therefore, relief was granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 the applicant’s pay grade and rank as SPC/E-4, when she enlisted in the Regular Army. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. The ABCMR is not an investigative agency. Paragraph 2–5 (Administrative remedies) states, the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. 3. Title 31, USC, section 3702, also known as the barring act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 4. AR 601-210 (Regular Army and Army Reserve Enlistment Program) dated 28 February 1995 prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA), the U.S. Army Reserve (USAR), and the Army National Guard (ARNG). In pertinent part, Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, PS Applicants), Section I (Basic Eligibility Criteria) states: a. Paragraph 3-1 (General), this chapter prescribes basic eligibility criteria for Prior- Service (PS) applicants for enlistment in the Regular Army and USAR. b. Paragraph 3-2 (Basic eligibility criteria for all PS applicants) states in paragraph 3-2a, persons applying for enlistment in the RA and USAR must meet eligibility criteria outlined in this chapter. PS applicants also must meet requirements of options for which they are enlisting. c. Paragraph 3-2b(1) states, prior service definitions for RA and USAR are as follows; for persons enlisting in the RA, applicants must have 180 days or more of active duty. 5. AR 601-210 (Regular Army and Army Reserve Enlistment Program) currently in effect, prescribes eligibility criteria governing the enlistment of persons, with or without PS, into the RA, the U.S. Army Reserve (USAR), and the Army National Guard (ARNG). In pertinent part, the regulation states in paragraph 3-16b(2), if an applicant was last separated from any component or is a current member of a Reserve Component in grade E-4, with not more than 7 years active Federal service and enlists within 48 months from the date of separation, the enlistment grade will be the same grade held at time of separation. If enlisting more than 48 months from completion of military service obligation, reduce one grade. 6. AR 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system. Paragraph 5-6 (Rules for completing the DD Form 214) provides detailed instructions for data required in each block of the DD Form 214. The specific instructions for Block 4 (Grade, Rate, or Rank) state to verify that active duty grade or rank and pay grade are accurate at time of separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006929 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1