IN THE CASE OF: BOARD DATE: 7 January 2014 DOCKET NUMBER: AR20130003732 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests remission or cancellation of her indebtedness. 2. The applicant states: a.  She was offered an Active Guard Reserve (AGR) tour and prior to accepting the offer she was selected for promotion to the rank/grade of sergeant (SGT)/E-5. b. She advised her AGR enlisted accessions technician at the U.S. Army Human Resources Command (HRC) she did not want to lose her promotion and she inquired about whether or not she would be able to maintain her promotion. The accessions technician told her she would be issued E-5 AGR orders; however, after inquiring about updating her identification card and contacting transportation she was issued specialist/E-4 orders. c. The accessions technician told her to take her Troop Program Unit (TPU) promotion orders to her in-processing unit and personnel there would fix her pay and she would amend the AGR orders. d. She contacted the Defense Finance and Accounting Service (DFAS) who advise her that her DFAS Form 702 (Leave and Earnings Statement (LES)) had been fixed. e. After being unable to access her Enlisted Record Brief, she contacted the enlisted personnel team lead at HRC. This official emailed the ERB to her and advised her it was blank and provided instructions for updating the ERB. f. During attempts to update her ERB for an E-6 promotion board she was advised she was not promoted to E-5 and that her TPU orders would have to be revoked. g. She provided all the supporting documents for her promotion to HRC and it was determined she was given incorrect information, her promotion would not be honored, and she would have to go before another promotion board. h. She was paid as an E-5 for 7 months and is now being told the money has to be recouped. She believes it is not fair; she was not flagged, and there is no reason for her to not be promoted. She has been demoted, her morale has been broken, and she is upset about being lied to about her promotion. i.  She moved her family to El Paso, TX, under the perception she was advancing her career. Her husband gave up a lot to support her career. j. It is not her fault she in-processed and did everything correctly and her promotion was revoked due to someone else's error. 3. The applicant provides: * Self-authored statements * DA Form 2142 (Pay Inquiry), dated 11 February 2013 * memorandum, subject: Additional Duty Appointment, dated 3 November 2012 * DA Form 2823 (Sworn Statement) * emails * Orders Number 12-208-00117, issued by Headquarters, 63d Regional Support Command, Mountain View, CA, dated 26 July 2012 * Orders Number R-07-287352, issued by HRC, dated 6 July 2012 * Orders Number 13-036-00058, issued by 63d Regional Support Command, dated 5 February 2013 * ERB * DA Form 2A (Personnel Qualification Record – Enlisted) * DA Form 3508 (Application for Remission or Cancellation of Indebtedness) * 7 DFAS Forms 702 * Memorandum, subject: Recommended Removal, dated 11 February 2013 * Master Military Pay Account (MMPA) extract CONSIDERATION OF EVIDENCE: 1. After having prior honorable periods of active service in the U.S. Navy and Army National Guard, the applicant enlisted in the U.S. Army Reserve on 24 March 2010 for a period of 6 years in the rank/grade of specialist/E-4. 2. On 6 July 2012, the applicant was ordered to active duty for a 3-year period and directed to report to El Paso, TX, on 27 July 2012. 3. Orders Number 12-208-00117, dated 26 July 2012, promoted the applicant to the rank/grade of SGT/E-5 effective 1 August 2012. 4. Orders Number 13-036-00058, dated 5 February 2013, revoked Orders Number 12-208-00117, dated 26 July 2012. Additionally, she was not placed in a de facto status at the time the orders were revoked. 5. On 11 February 2013, the applicant submitted a DA Form 3508 requesting the remission or cancellation of indebtedness incurred as a result of 7 months of pay as an E-5. She also provided a memorandum from her commander recommending approval of her request. 6. An extract of the applicant's MMPA shows she owes a debt of $2,192.70 for exceeding her household goods weight allowance. Additionally, LESs for the period August 2012 through January 2013 show the applicant was paid as an E-5. 7. Orders Number 13-143-00064, issued by the 63rd Regional Support Command, Mountain View, CA, dated 23 May 2013, promoted the applicant to the rank/grade SGT/E-5 with an effective date of 1 June 2013. 8. The applicant provides an email, dated 25 June 2012, which shows she was advised by an HRC enlisted accessions technician prior to her entry into the AGR Program she would be receiving E-5 AGR orders. 9. On 29 October 2013, the Chief of Promotions, HRC, provided an advisory opinion. This official stated: a.  The applicant was considered for promotion prior to her acceptance into the AGR Program. Her promotion Order Number 12-208-00117 was produced on 26 July 2012 with an effective date of rank of 1 August 2012. This promotion was effective after she entered into the AGR Program on 27 July 2012. b.  In accordance with Army Regulation 135-18 (The Active Guard Reserve Program), paragraph 2-5d, "USAR enlisted Soldiers promoted prior to AGR entry may be advanced in grade and skill level and considered for AGR duty at the higher grade without further board action, consistent with the needs of the AGR Program." 10. On 8 November 2013, a copy of the advisory opinion was provided to the applicant. She did not respond within the time frame given. 11. Army Regulation 135-18 prescribes the policy and procedures for the administration of the AGR Program. 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 (ARNGUS) and USAR projects and programs. Paragraph 2-5 states USAR enlisted Solders promoted prior to AGR entry may be advanced in grade and skill level, and considered for AGR duty at the higher grade without further board action, consistent with the needs of the AGR Program. Soldiers are required to furnish a copy of promotion orders to HRC before consideration at the higher grade. Advancement prior to AGR entry does not guarantee availability of an AGR position and may result in the Soldier not being offered an AGR position. 12. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel to include active Army, ARNG, and USAR. Paragraph 1-16 contains guidance on erroneous promotions and de facto status. It states, in pertinent part, that when an erroneous promotion is detected, service in the higher grade may have been in de facto status when the Soldier was not at fault, but the promotion was erroneously accomplished. Even though the promotion order is revoked, the promotion authority or higher commander, after legal review by the servicing staff judge advocate, may determine de facto status exists when the following conditions exist: the Soldier accepted promotion in good faith; a promotion order was issued; the Soldier received pay in the higher grade; there was no absolute statutory bar to receipt of military pay; and the Soldier actually discharged the functions of the higher grade. A determination of de facto status may be made only to allow the Soldier to keep any pay and allowances received at the higher grade. DISCUSSION AND CONCLUSIONS: 1. Although the applicant was erroneously counseled that she would enter the AGR Program in the rank/grade of SGT/E-5, her promotion orders at the time had an effective date of 1 August 2012. 2. Notwithstanding the advisory opinion, the applicant entered the AGR Program in good faith, met the qualifications, performed at the rank/grade of SGT/E-5, and was erroneously paid as an E-5. However, when her promotion orders were revoked, she was not placed in a de facto status. Therefore, this was an injustice to the applicant and it would be appropriate to grant her de facto status as a SGT/E-5 for the period 27 July 2012 through the date of her promotion revocation. 3. Any monies recouped for this period should be returned to the applicant. BOARD VOTE: ____X____ ___X_____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 amending Orders Number 13-036-00058, dated 5 February 2013, showing the individual concerned was placed in a de facto status as a SGT/E-5 for the period 27 July 2012 through 5 February 2013 with full entitlement to pay and allowances. _______ _ _X______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20130003732 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130003732 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1