2. In effect, the applicant requests that the effective date and date of rank of her promotion to Sergeant E-5 be adjusted from 1 May 1992 to 20 June 1991.
3. The applicant states that her promotion orders of
20 June 1991 were revoked. She was subsequently promoted on 1 May 1992; however, she was in fact occupying a valid position vacancy in which she was qualified when she was originally promoted in 1991.
4. The applicant served on active duty from 19 January 1978 until her discharge on 28 September 1979. Her DD Form 214 (Report of Separation) shows that she was a finance specialist, MOS (military occupational specialty) 73C10.
5. The applicant enlisted in the Reserve on 29 June 1989. She was an Active Guard/Reserve (AGR) soldier on duty with the 21st Theater Army Area Command (TAACOM) when she was attached to the Replacement Battalion Activity at Fort Benjamin Harrison, Indiana for duty with a finance and accounting office on 16 December 1990.
6. On 20 June 1991 the applicant was promoted to Sergeant pay grade E-5 and awarded the military occupational specialty (MOS) 73C20 (finance NCO).
7. On 13 July 1991 an official in the office of the Chief of the Army Reserve (OCAR) requested that the applicants promotion order to pay grade E-5 be revoked. That official stated, in effect, that Army Regulation 140-158, paragraph 4-6, required a soldier to be qualified in the duty MOS (DMOS) and be in the position authorized a Sergeant E-5 in order to be promoted. He continued by saying that the applicant was not qualified in her DMOS.
8. On 1 May 1992 the order promoting the applicant to Sergeant E-5 was revoked.
9. On 24 June 1992 an official at Fort Benjamin Harrison
stated that the applicant was assigned to an E-5 position during the period December 1990 through July 1991, while
working in the military pay branch.
10. On 17 November 1992 the adjutant of the 21st TAACOM, in a memorandum to this Board, requested that the applicants original date of rank of 21 June 1991 for promotion to pay grade E-5, be reinstated. That official stated that the applicant was assigned to a MOS 71C20 position while assigned to the 21st TAACOM, but upon mobilization she was assigned and fully qualified as a finance NCO (MOS 73C20) in an E-5 position with the Replacement Battalion Activity, although the Reserve Personnel Center at St. Louis indicated that she was an executive administrative assistant (MOS 71C20) with the 21st TAACOM. That official stated that all the soldiers mobilized and deployed to Southwest Asia from the 21st TAACOM were reassigned to positions in a support command, in effect, causing the 21st TAACOM to cease existing.
11. On 1 May 1992 the applicant completed an executive administrative assistant course, MOS 71C20, and was promoted to Sergeant, pay grade E-5, on that date.
12. An official from the OCAR, in an informal opinion, stated that the revocation of the order promoting the applicant was indeed correct - that the applicant was not in an E-5 position vacancy in her assigned unit at the time of her promotion in June 1991.
13. Army Regulation 140-158 prescribes the policies and procedures concerning promotion of soldiers serving on AGR status. Paragraph 4-6 of that regulation states, in effect, that soldiers will be promoted only in the career primary
MOS (CPMOS). They must be fully qualified in the MOS in which recommended for promotion. On entry on AGR status, soldiers who accepted assignment to a duty position not
relating to their PMOS or secondary MOS (SMOS) must become fully qualified in the DMOS. They must be reclassified before, or at the time of, the promotion. Position vacancies are required. The soldier must be assigned to the higher graded position vacancy prior to execution of the promotion.
14. Paragraph 1-8 of the aforementioned regulation states, in effect, that when orders are published revoking a promotion, the soldiers 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 when an instrument of promotion has been issued; and the soldier occupied the higher grade in good faith; and the soldier actually discharged the functions of the higher grade; and there is no absolute statutory bar to her receipt of the funds.
CONCLUSIONS:
1. The applicant was erroneously promoted to Sergeant E-5 on 20 June 1991. The order revoking her promotion was proper.
2. The applicant served in pay grade E-5 in a de facto status from 20 June 1991 until the revocation of her promotion on 1 May 1992. She should retain all pay and allowances in pay grade E-5 for that period.
3. The applicant was properly promoted to pay grade E-5 in MOS 71C20 on 1 May 1992.
4. In view of the foregoing finds and conclusions, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned served in a de facto status as a Sergeant, pay grade E-5, from 20 June 1991 until 1 May 1992, and that she retain all pay and allowances in pay grade E-5 for that period.
2. That so much of the application as in excess of the foregoing be denied.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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