PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 January 2003
         DOCKET NUMBER: AR2002071010


         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.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Tracey L. Pinson		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, de facto status and relief of the debt incurred as a result of his erroneous promotion to sergeant first class/E-7 (SFC/E-7), and reinstatement of his promotion to SFC/E-7.

3. The applicant states, in effect, that he had no control over the process that resulted in his promotion to SFC/E-7, the revocation of that promotion, or in the subsequent advancement back to SFC/E-7. He claims that material errors were made by his personnel manager, who failed to pull his promotion packet prior to the convening date of the promotion board. He further states that under the governing regulation, his situation should qualify for de facto status and promotion reinstatement because he held and discharged the duties of the higher rank and pay grade and he meets the criteria for promotion to that rank and pay grade.

4. The applicant’s military records show that he is currently a member of the United States Army Reserve (USAR). At the present time, he is serving on active duty in an Active Guard Reserve (AGR) status and he holds the rank and pay grade of staff sergeant/E-6 (SSG/E-6).

5. Orders Number 320-17, dated 16 November 1999, issued by the U.S.
Total Army Personnel Command (PERSCOM), St. Louis, Missouri, authorized the applicant’s promotion to SFC/E-7, effective 1 December 1999. Instructions contained in these orders specified that the promotion was not valid and would be revoked if the applicant was not in a promotable status on the promotion effective date. These orders also stipulated that the applicant incurred a two year AGR service obligation prior to voluntary retirement.

6. Orders 130-1, dated 9 May 2000, revoked Orders Number 320-17 and the applicant’s promotion to SFC/E-7. The authority for the promotion revocation was Army Regulation 140-158.

7. Orders 299-09, dated 26 October 2001, issued by the PERSCOM, St. Louis, again authorized the applicant’s promotion to SFC/E-7, effective 1 December 1999. These orders also stipulated that the promotion would be revoked if the applicant was not in a promotable status on the effective date, and that the applicant automatically incurred a two year AGR obligation service obligation.

8. PERSCOM Orders Number 362-05, dated 28 December 2001, as amended by Orders Number 058-19, dated 27 February 2001, revoked Orders 299-09 and again revoked the applicant’s promotion to SFC/E-7.

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9. On 18 March 2002, the applicant’s unit commander, recommended approval of the applicant’s request for remission or cancellation of indebtedness, which he had incurred as a result of his receiving pay and allowances as a SFC/E-7. The unit commander indicated that a material error had occurred during the promotion process that resulted in the applicant’s erroneous promotion to
SFC/E-7 on two separation occasions. The unit commander also indicated that the condition that resulted in the revocation of the applicant’s promotion was the applicant’s failure to satisfy the two year service remaining requirement within
30 days of the effective date of his promotion. The unit commander stated that it was his belief that a de facto status existed and that the applicant should have been allowed to retain the pay he received as a SFC/E-7 because an official promotion instrument was published and the applicant had faithfully discharged the duties and responsibilities of the higher rank and pay grade.

10. In connection with the processing of this case an advisory opinion was received from the Acting Director, Full Time Support Management Directorate, Army Reserve Personnel Command (ARPERSCOM). This official stated that the applicant was conditionally promoted to SFC/E-7 on 1 December 1999. As a result, the applicant incurred a two year AGR service obligation and he was required to reenlist within 30 days to meet this service obligation. As of 9 May 2000, the applicant had not reenlisted, and his promotion orders were revoked. The applicant subsequently reenlisted on 11 December 2000, and his promotion was reinstated with his original date of rank of 1 December 1999. Later, it was discovered that because the applicant reenlisted under the wrong provisions and he was not assigned to a position authorized an SFC/E-7, he failed to satisfy the promotion requirements. Consequently, the applicant’s promotion was revoked a second time on 28 December 2001. On 26 February 2002, PERSCOM,
St. Louis, recommended disapproval of the applicant’s request for de facto status for the period 1 December 1999 through 28 December 2001.

11. The recommendation contained in the ARPERSCOM advisory opinion is that the applicant be granted de facto status for the periods 1 December 1999 through 28 December 2001. This recommendation is based on the fact that the applicant tried to comply with the promotion service obligation requirement by reenlisting, and although he reenlisted under the wrong rule through no fault of his own, he made the good faith effort to satisfy the requirement. Further, the applicant had no control over the position he was serving in and he was in an invalid position because orders were never published to place him in an authorized position. The applicant was provided a copy of this advisory opinion and provided his concurrence with its contents on 18 November 2002.

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12. Army Regulation 140-158 prescribes the policies and procedures of the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers. Chapter 4 contains the policy on the promotion of soldiers serving in an AGR status. It states, in pertinent part, that soldiers selected for promotion to the grade of staff sergeant or above will be reassigned to a position authorized the new grade with a concurrent permanent change of station if necessary. It also stipulates that soldiers promoted to SFC/E-7 incur a two year AGR service obligation and those who have insufficient time remaining on their current term of service must, in order to be promoted, start action to extend their current agreements. It further states that extension actions will be taken and an amendment to the AGR orders will be issued by ARPERSCOM that provide for the incurred service obligation and establish the simultaneous expiration of term of service and release from active duty dates. Finally, it states that the promotion will be revoked if the soldier fails or refuses to comply with the ETS adjustment action based on the incurred AGR service obligation.

CONCLUSIONS:

1. The Board notes the applicant’s request that he be granted de facto status and that his promotion to SFC/E-7 be reinstated, and it finds this claim has merit.

2. The evidence of record confirms that although the applicant technically failed to comply with the two year promotion service remaining requirement within
30 days of the effective date of his promotion, this was more the result of administrative processing errors rather than a reflection of the applicant’s intent not to comply with the requirement.

3. In the opinion of the Board, the record clearly shows that the applicant attempted to satisfy the service remaining requirement and this resulted in the reinstatement of his promotion. However, based on further administrative errors in his reenlistment and assignment processing, his promotion was revoked a second time through no fault of his own.

4. In view of the facts of this case, and based on the recommendation of the applicant’s AGR personnel manager contained in the ARPERSCOM advisory opinion, the Board concludes it would be appropriate to reinstate the applicant’s SFC/E-7 promotion, effective 1 December 1999, and to provide him all pay and allowances due as a result.

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5. In connection with this recommendation, the Board also concludes that the responsible ARPERSCOM personnel officials should ensure that the proper extension/reenlistment action has been accomplished to ensure the applicant has sufficient remaining service to satisfy the two year promotion service obligation. Further, these officials should also immediately take action to reassign the applicant to a position authorized the rank and pay grade of
SFC/E-7.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by reinstating the sergeant first class/E-7 promotion of the individual concerned, effective 1 December 1999; and by providing him all pay and allowances due as a result the reinstatement of this promotion.

BOARD VOTE:

__KAK__ __MHM _ __TLP __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _ _Karol A. Kennedy_ __
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071010
SUFFIX
RECON
DATE BOARDED	2003/01/28
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 322	133.0000
3.
4.
5.
6.