PROCEEDINGS


         IN THE CASE OF.
        

         BOARD DATE: 30 September 2003
         DOCKET NUMBER: AR2002082299

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		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 overpayment during the period 1 July 2000 through 2 November 2001.

3. The applicant states, in effect, that he did not understand the proper channels through which to process his request for de facto status. He claims that subsequent to the revocation of his promotion, battalion personnel informed him a memorandum had been sent to Army Reserve Personnel Command (ARPERSCOM) and that the de facto status was just and the money would not be collected from his pay. He further states at the end of his tour as a recruiter he was informed that he was not formally given de facto status and the Defense Finance and Accounting Service (DFAS) notified him that he was indebted to the government in the amount of $5,906.90.

4. In support of his application, the applicant provides copies of the following documents: request for de facto status (DA Form 4187), dated 31 October 2002; notification of debt memorandum from the DFAS, dated 31 October 2002; a 2 November 2002 memorandum from the Chief, Office of Promotions, Reserve Components (RC), Total Army Personnel Command (PERSCOM), St, Louis, Missouri, recommending that he be granted de facto status; promotion revocation orders; Noncommissioned Officer Evaluation Report (NCOER-DA Form 2166-7), and a self authored letter addressed to the Active Guard Reserve (AGR) reduction board, dated 9 October 2002.

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

6. Orders Number 167-31, dated 15 July 2000, issued by the PERSCOM,
St Louis, authorized the applicant’s promotion to SFC/E-7, effective 1 July 2000. These orders contained instructions that 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.

7. A memorandum on file, published by the Chief, Enlisted Management Division, ARPERSCOM, indicates the applicant was placed under a suspension of personnel actions (FLAG) on 26 April 2000 based on his failure of an Army Physical Fitness Test (APFT). It also stated that ARPERSCOM did not receive the FLAG until 23 August 2001. The memorandum also confirmed that the applicant should not have been promoted as a result of his being in a nonpromotable status on the effective date of his promotion, 1 July 2000, and that his promotion orders should be revoked. In addition, the memorandum recommended that the applicant be granted de facto status.

8. Orders Number 306-09, dated 2 November 2001, revoked the applicant’s promotion orders and the applicant’s promotion to SFC/E-7. The authority for the promotion revocation was Army Regulation 140-158.

9. The applicant prepared a memorandum for record on 9 October 2002, SUBJECT: Request De Facto Status authored by the applicant provides facts and circumstances surrounding his promotion revocation and his request for
de facto status.

10. A memorandum to the applicant from the Defense Military Pay Office, Fort George G. Meade, Maryland, dated 31 October 2001, notified him that he was found to be indebted to the government in the amount of $5,906.90.

11. The applicant submitted a DA Form 4187 on 31 October 2002, requesting that he be granted de facto status in connection with his erroneous promotion to SFC/E-7 with the support of his chain of command.

12. On 2 November 2001, the Chief, Office of Promotion, RC, PERSCOM,
St. Louis, recommended that the applicant be granted de facto status for the period 1 July 2000 through 1 November 2001.

13. In connection with the processing of this case an advisory opinion was received from the Director, Full Time Support Management Directorate (FTMD), ARPERSCOM. This official recommended that the applicant be granted de facto status to allow him to retain pay and allowances he received during the period he served as a SFC/E-7.

14. The FTMD Director further indicated that the applicant was conditionally promoted to SFC/E-7 in July 2000, prior to ARPERSCOM receiving a copy of the FLAG action imposed on the applicant based on his APFT failure on 26 April 2000. As a result of the FLAG action, the applicant was not eligible for promotion when his orders was issued, and his promotion was revoked on 2 November 2001. At the time the promotion was revoked, ARPERSCOM recommended that the applicant’s request for de facto status be granted in accordance with regulatory guidance. However, the final determination regarding de facto status rests with DFAS, and judging from the documentation submitted by the applicant, DFAS apparently did not grant the applicant de facto status.

15. The FTMD Director concludes by stating that ARPERSCOM still believes the applicant’s case satisfies the regulatory requirements for approval of de facto status. The applicant was provided a copy of this advisory opinion and provided his concurrence with its contents on 2 September 2003.

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16. Army Regulation 140-158 prescribes the policies and procedures of the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers. Paragraph 1-8 contains guidance on de facto service. It states 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.

17. The regulation further indicates that a de facto status may have existed and the soldier may be authorized to retain pay and allowances received when an instrument of advancement or a promotion order 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 his or her receipt of the funds. The regulation further stipulates, in pertinent part, that for soldiers serving in an AGR status who were erroneously promotion, the commander, PERSCOM, St. Louis, will determine if de facto status is appropriate. However, the final determination of whether the soldier served in a de facto status for purposes of retaining pay and allowances received must be made by fiscal officers of the United States, on receipt of the reduction or revocation order.

CONCLUSIONS:

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

2. The evidence of record confirms the applicant was conditionally promoted to SFC/E-7 on 1 July 2000 and satisfactorily performed the duties of his office and grade until his promotion was revoked on 2 November 2001. The record also clearly shows that the applicant’s erroneous promotion resulted from an administrative error on the part of his command, which did not timely process a FLAG imposed on the applicant on 26 April 2000 based on his failure of the APFT. In the opinion of the Board, the applicant bears no responsibility for this administrative failure and should not be penalized as a result.

3. In view of the facts of this case, and based on the de facto status determination and recommendation contained in the ARPERSCOM advisory opinion, the Board concludes it would be appropriate to grant the applicant de facto status for the period 1 July 2000 through 1 November 2001.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was granted de facto status for the period 1 July 2000 through 1 November 2001, and by removing the now erroneous debt that has incurred as a result of his receiving pay and allowances based on his erroneous promotion to sergeant first class/E-7 for the period 1 July 2000 through
1 November 2001.

BOARD VOTE:

__MVT__ __MM___ __RJW __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond J. Wagner
                  CHAIRPERSON

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INDEX

CASE ID	AR2002082299
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.283	128.0000
2.
3.
4.
5.
6.