RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 February 2008 DOCKET NUMBER: AR20080000585 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. Ms. Catherine C. Mitrano Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. William D. Powers Chairperson Ms. Rose M. Lys Member Mr. Qawiy A. Sabree Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his promotion to Sergeant First Class (SFC), E-7 be reinstated effective 1 September 2004; that he be awarded military occupational specialty (MOS) 11B (Infantryman), or any other MOS, in conjunction with his promotion to SFC; that he be paid all back pay and allowances as an E-7 as of 1 September 2004; that he be immediately scheduled for Phase II of the Advanced Noncommissioned Officer Course (ANCOC); that he be immediately considered for promotion to Master Sergeant, E-8, backdated to a September 2006 eligibility date; that he be scheduled for the First Sergeant’s School; and that he be placed in a First Sergeant’s slot. 2. The applicant states that his promotion to SFC was unfairly revoked 3 years after the fact, which resulted in the loss of rank, loss of pay, loss of opportunity to be considered for promotion to E-8, loss of opportunity to attend higher-level schooling, and forced retirement for maximum years of service. 3. The applicant states that he was selected for promotion to SFC by a centralized Active Guard Reserve (AGR) promotion board. Orders, dated 11 August 2004, promoted him to SFC and awarded him MOS 13B4O effective 1 September 2004. He never declined the promotion. At that time, his unit was already alerted for mobilization and was mobilized on 17 August 2004. All of the documents and memoranda referred to in this request were only seen by him much later than the actual dates of those documents. Once back in Hawaii in 2006, since he was aware of a 24 August 2004 memorandum that stated his promotion was pulled (although no one had ever explained why), he submitted his packet for the 2006 promotion board. He was again not selected, and he assumed that was due to the fact that the U. S. Army Human Resources Command – St. Louis (USAHRC – HRC) still carried him as an E-7 since no revocation order existed. 4. The applicant states that meanwhile his career manager indicated that he needed to move to a new post and searched for a slot for him. It was about that time someone mentioned for the very first time that perhaps he should reclassify because there were no 11C (Indirect Fire Infantryman) E-7 slots to move into. He was unaware that he held the only 11C E-6 AGR slot in the AGR inventory nor did he know that no E-7 11C position existed in the AGR program. In 2006, his company commander informed him that the position he held there was actually being deleted. His career manager determined that he was to move to an 11B3O E-6 position at Fort Dix, NJ, but he was never required to attend 11B school. Because he was informed that he would have to retire due to maximum time in grade, he did not even have the opportunity to go through the process of reclassifying and attending schools for the purpose of obtaining the 11B MOS. 5. The applicant states that it was not until December 2007, when he sought answers as to why his E-7 promotion was pulled, that it was clearly explained to him that he was not promoted because there was no slot in the inventory for an AGR E-6 11C to advance to the rank of E-7 and, further, that he could not transition from 11C to an 11B or 13B. A Soldier in a field unit has NO (emphasis in the original) mechanism with which to “see” what positions exist at which ranks and MOSs. It is the responsibility of Accessions Branch and Career Managers to inform a Soldier of the growth and promotion potential in the Soldier’s MOS. 6. The applicant states that because he is listed as an E-6 he is being forced to retire at the 20-year point. If he had been promoted to E-6, he would not be required to retire at this time. The retirement section personnel at Fort Dix questioned why he was wearing the rank of E-6 and being paid at the rank of E-6. They stated that their records indicated he was an E-6. That raised a question in his mind as well. As a result of an inquiry from his unit, USAHRC produced an order, dated 15 November 2007, that revoked his 2004 promotion. When his commander raised concerns about the date of the revocation, USARHC produced another revocation order, allegedly dated 20 August 2004, and claimed that it had been lost. 7. The applicant states that his commander asked what would have happened if he (the applicant) had pinned on the rank of SFC and been paid as an E-7 since September 2004. They were told that “they” (i.e., USAHRC) would have forgiven the error and allowed him to keep the E-7 pay. Thus, if he had been aggressive and had pinned on E-7 on the basis of the promotion order he would have gotten away with it, but because he was cautious and honest and did the right thing, he is disadvantaged. 8. The applicant provides a Wire Systems Installer/Operator Course completion diploma; MOS orders, dated 16 September 1987; E-6 promotion orders; MOS orders, dated 24 September 1998; an Infantry Mortar Leader Course diploma; reassignment/deployment orders, dated 1 August 2004; E-7 promotion orders, dated 11 August 2004; orders, dated 20 August 2004, revoking the E-7 promotion orders; a USAHRC – STL memorandum, dated 24 August 2004; a USAHRC – STL memorandum, dated 25 August 2004; orders, dated 15 November 2007, revoking the E-7 promotion orders; email correspondence, dated November/December 2007; a Roster of Enlisted Personnel Recommended for Promotion to Sergeant First Class; an extract from the Sergeant First Class Promotion Select Objectives FY (fiscal year) 2004, dated 18 June 2004; a fax cover sheet; and an extract from Department of the Army Circular 611-94-2. CONSIDERATION OF EVIDENCE: 1. After having had prior service in the Regular Army, the applicant enlisted in the U. S. Army Reserve (USAR) on 4 January 1996. He was promoted to Staff Sergeant (SSG), E-6 effective 1 March 1993 in MOS 13E (Cannon Fire Direction Specialist). He was awarded primary MOS 11C effective 24 September 1998, and MOS 13E was made his secondary MOS. He was ordered to active duty in an AGR status around June 2000. 2. Records at the AGR Branch, USAHRC – STL show that the applicant was considered but not selected for promotion by the 2001, 2002, and 2003 AGR E-7 promotion boards. 3. The applicant deployed to Iraq around August 2004. 4. USAHRC – STL Orders 224-027, dated 11 August 2004, promoted the applicant to SFC in MOS 13B effective 1 September 2004. 5. The memorandum of instruction to the promotion board that considered and selected the applicant for promotion to E-7 had informed the board that promotion selections outside of a Soldier’s primary, secondary, or additional MOSs were not authorized. 6. USAHRC – STL Orders 233-05, dated 20 August 2004, revoked the applicant’s SFC promotion orders. 7. In a memorandum, dated 24 August 2004, from one office at USAHRC – STL to another office at USAHRC – STL, it was noted that the applicant was administratively removed from the 2004 USAR SFC AGR promotion list in MOS 13B4O in accordance with Army Regulation 140-158, paragraph 4-19h. The applicant provided an email, dated 14 December 2007, that indicated there was correspondence in his file indicating that Promotions Branch, USAHRC – STL petitioned the Army G-1 for an exception to policy to promote Soldiers from that promotion board who were considered and selected outside their career field. The Army G-1 disapproved the request. 8. In a memorandum, dated 25 August 2004, USAHRC – STL informed the applicant that he was not authorized promotion reconsideration. He had been considered in his correct MOS, but he was selected in the wrong MOS. He was also informed that there were no select objectives for either his primary or his secondary MOS. 9. USAHRC – STL Orders 224-027R, dated 15 November 2007, revoked the applicant’s SFC promotion orders. 10. Records at the AGR Branch, USAHRC – STL show that the applicant was considered but not selected for promotion by the 2004 and 2005 AGR E-7 promotion boards. 11. The applicant is scheduled to separate from active duty, apparently after completing 20 years of active service and reaching his retention control point as an E-6, on 31 March 2008. 12. Army Regulation 135-18 (The Active Guard Reserve (AGR) Program). It states the objective of the AGR program is to provide highly-qualified officers, warrant officers, and enlisted Soldiers to meet the full-time support requirements for Army National Guard of the United States and USAR projects and programs. This regulation provides, in part, a career program offering opportunities that encourages retention through promotion, professional development, and assignments or attachments to positions of increased responsibility. Those Soldiers who are qualified for continuation in the AGR program require management that provides progressively more responsible duty assignments or attachments and maximum use of military schooling. An orderly, well-managed program with opportunities for military education, progressively responsible assignments or attachments, and timely promotion is essential to attract and retain qualified personnel. 13. Army Regulation 140-158, in effect at the time, chapter 4, provided guidance regarding the promotion of Soldiers serving in an AGR status. Paragraph 4-9 stated that promotion to E-6 and above would be made through the centralized process against existing or projected vacancies in the AGR program. Paragraph 4-10 stated that general criteria for promotion consideration were prescribed in a memorandum of instruction to the board. 14. Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, paragraph 1-8e, stated that, when orders are published revoking an advancement or promotion, the Soldier's service in the higher grade may be determined to have been de facto so as to allow the Soldier to retain pay and allowances received in that status. A de facto status may have existed and the Soldier may be authorized to retain pay and allowances received when: (a) an instrument of advancement or promotion order has been issued; (b) the Soldier occupied the higher grade in good faith; (c) the Soldier actually discharged the functions of the higher grade; and (d) there is no absolute statutory bar to his or her receipt of the funds. DISCUSSION AND CONCLUSIONS: 1. Whether or not the 20 August 2004 promotion revocation orders were “lost” for a time, resulting in the issuance of the November 2007 revocation orders, the preponderance of the evidence (the 20 August 2004 orders plus the 24 August 2004 memorandum and the 25 August 2004 memorandum) indicate that the applicant’s SFC promotion orders were revoked in a timely manner after discovery of his erroneous selection for promotion. 2. The applicant contended that he was unaware that he held the only 11C E-6 AGR slot in the AGR inventory nor did he know that no E-7 11C position existed in the AGR program. He contended that it was not until December 2007, when he sought answers as to why his E-7 promotion was pulled, that it was clearly explained to him that he was not promoted because there was no slot in the inventory for an AGR E-6 11C to advance to the rank of E-7. 3. It is true that the governing regulation states that Soldiers who are qualified for continuation in the AGR program require management that provides progressively more responsible duty assignments and maximum use of military schooling and that an orderly, well-managed program with opportunities for military education, progressively responsible assignments, and timely promotion is essential to attract and retain qualified personnel. 4. However, a Soldier is ultimately responsible for his or her own career. The applicant was considered and not selected for promotion by the 2001, 2002, and 2003 AGR E-7 promotion boards. The time to question what he could do to enhance his competitive status for promotion was in 2001, and surely no later than 2002. If Accessions Branch and Career Managers fail to inform a Soldier of the growth and promotion potential in the Soldier’s MOS, it is the Soldier’s own responsibility to ask the questions that need to be answered in a timely manner. 5. Had the applicant pinned on the rank of SFC and been paid as an E-7 since September 2004, a determination might have been made that he served as an E-7 in a de facto status. However, that would not have meant that his promotion was valid or that he would have kept the promotion. As soon as it was discovered (and that probably would have occurred no later than upon his consideration by an E-8 promotion board), the E-7 promotion would still have been revoked. 6. The applicant provides insufficient evidence that would warrant granting the relief requested. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __wdp___ __rml___ __qas___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __William D. Powers___ CHAIRPERSON INDEX CASE ID AR20080000585 SUFFIX RECON DATE BOARDED 20080207 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Ms. Mitrano ISSUES 1. 131.02 2. 3. 4. 5. 6.