2. The applicant requests that his promotion to chief warrant officer 4 (CW4) be adjusted to 3 November 1992 and he be reimbursed the money collected by the Defense Finance and Accounting System (DFAS).
3. He states that after receiving notification he had been selected for promotion with a promotion eligibility date (PED) of 3 November 1992, he completed the necessary document and forwarded it to his higher headquarters for appropriate action. However, for reasons unknown, and despite repeated inquiries, he received no promotion confirmation letter until 9 February 1995.
4. Further, he states that in March 1995, DFAS began collecting back the erroneous pay that was made to him as a result of his promotion to CW4.
5. His military records show that he was selected for promotion to CW4 by a Department of the Army Reserve Component Selection Board on 8 July 1991. His PED was established as 3 November 1992. On 26 August 1991 he signed a document indicating his intent to accept the promotion (a necessary prerequisite to preparation of the actual promotion confirmation memorandum).
6. In May 1993 and April 1994 he again provided copies of his acceptance of promotion form to his higher headquarters, but no action was taken to consummate the promotion. Subsequent documents addressed to him as a CW3, to include an officer evaluation report, confirmed that no action had been taken to prepare his promotion confirmation memorandum.
7. Effective 3 November 1992 DFAS began paying him CW4 pay apparently based on the 8 July 1991 promotion selection letter and without having received the confirmation of promotion documents from his unit. On 10 March 1995 DFAS indicated on his leave and earnings statement that it was recouping the pay difference between CW3 and CW4 that had been erroneously paid to him.
8. On 9 February 1995, 2 years and 3 months after his PED, he received a memorandum from his higher headquarters confirming his acceptance of his promotion to CW4. The memorandum informed him that his time in grade for promotion to the next higher grade would be computed from the date of his original PED (3 November 1992); however, his promotion was effective from the date of the memorandum (9 February 1995).
9. Army Regulation 135-155, Promotion of Commissioned Officers and Warrant Officers other than General Officers, provides in pertinent part, that unless otherwise entitled by law, antedating of either the effective date of promotion or PED will not entitle a reserve component warrant officer to increased pay and allowances. This applies to any period of service before the date of the promotion notice.
CONCLUSIONS:
1. It appears that the applicants promotion to CW4 was delayed through no fault of his own. However, even if this Board were to correct the record to show that he is authorized to receive CW4 pay from his PED of 3 November 1992, the regulatory guidance noted above would still limit payment since there is no other entitlement by law that permits such back payments.
2. On the other hand, the premature payment of CW4 pay he did receive occurred through an administrative error and there is no indication of fraud, misrepresentation, fault or lack of good faith on his part. Therefore, in the interest of equity and good conscience he should not be penalized by having to repay the erroneous payments.
3. Despite the shabby treatment the applicant received in connection with his promotion, he should suffer no permanent career damage since his eligibility for future promotion consideration is effective from the original PED (3 November 1992).
4. In view of the foregoing, the applicants records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by showing that the individual concerned is entitled to a refund of the amount of CW4 pay that was collected from his pay; and
b. by showing that his liability for recovery of erroneous CW4 payments has been waived.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
_______________________
CHAIRPERSON
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