RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 January 2004
         DOCKET NUMBER: AR2003087293


         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Lester Echols		Member
Ms. Yolanda Maldonado		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).


1. The applicant requests that his promotion to sergeant first class (SFC) be reinstated effective 1 April 2002.

2. The applicant states that his revocation is not valid and he should be promoted to SFC effective 1 April 2002 in accordance with Army Regulation 600-8-22, paragraph 1-24b and paragraph 7 of U.S. Total Army Personnel Command's (PERSCOM) (currently known as U.S. Army Human Resources Command) Memorandum for the SFC Selection Board.

3. The applicant provides a copy of orders promoting him to SFC; his memorandum declining his promotion to SFC; orders revoking his promotion to SFC; Page 7 from Army Regulation 600-8-19 (Enlisted Promotions and Reductions); Memorandum for Calendar Year 2002 (CY02) SFC Selection Board; his memorandum requesting reconsideration of promotion revocation; a memorandum from a sergeant major (SGM) at the U.S. Army Intelligence and Security Command, 1st Information Operations Command, Fort Belvoir, Virginia; a print-out from the Standard Installation Division Personnel System dated 15 October 2002; an Army active duty identification card; a letter from the Assistant Inspector General, PERSCOM; and a supplemental letter.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Army on 10 September 1993 and has had continuous service.

2. He was promoted to staff sergeant (SSG) with a date of rank of 1 January 1999.

3. The applicant was conditionally promoted to SFC with a date of rank and effective date of 1 April 2002 by PERSCOM Order Number 71-23 dated 18 March 2002.

4. In a 2 May 2002 memorandum, the applicant declined the promotion to SFC effective 1 April 2002. He stated his intentions were to separate at the end of his current enlistment (27 June 2003).

5. Orders were published on 2 May 2002 by PERSCOM to revoke the applicant's promotion to SFC.

6. In a 24 October 2002 memorandum to G1, Intelligence and Security Command, Fort Belvoir, Virginia, the applicant requested reconsideration of his promotion revocation due to noncompliance of published regulations. He stated that he received promotion orders promoting him to SFC with an effective date of 1 April 2002 and he decided to decline the promotion and separate at the end of his current enlistment. He also stated that he signed a memorandum declining the promotion on 2 May 2002 and revocation orders were cut and dated 2 May 2002. He stated that this violates the 30-day requirement and constitutes acceptance of the promotion and the service remaining requirement.

7. On 18 November 2002, the Chief, Enlisted Promotions, Promotions Branch denied the applicant's request for reconsideration of promotion revocation. The memorandum stated that, in accordance with Army policy, once the declination of promotion is received by the promotion authority, the declination is irrevocable.

8. On 10 February 2003, the Office of the Inspector General, PERSCOM informed the applicant that the Promotions Branch acted correctly and in accordance with Army Regulation 600-8-19, paragraph 1-24f which states a promotion declination may not be revoked once accepted by the promotion authority. The applicant was advised to seek redress through the Army Board for Correction of Military Records.

9. The applicant provided a copy of the Memorandum for the CY02 SFC Selection Board. Paragraph 7 of this memorandum states, in pertinent part, that a soldier who declines promotion must forward a letter of declination as soon as possible, but not later than 30 days after the effective date indicated in the PERSCOM promotion orders. Failure to decline promotion within 30 days of the effective date constitutes acceptance of the promotion and the two-year service remaining requirement.

10. In the processing of this case, an advisory opinion was obtained from the Chief, Promotions Branch, U.S. Army Human Resources Command. This office opined that the applicant was selected for promotion by the May 2001 SFC Selection Board and was conditionally promoted effective 1 April 2002 by PERSCOM Order Number 71-23. The opinion points out that in reference to paragraph 1-24b of Army Regulation 600-8-19, "a soldier may submit a memorandum of declination any time after being recommended for promotion. If the soldier has been promoted, the declination memorandum will be sent through command channels to the PSB (Personnel Service Battalion) not later than 30 days after effective date of promotion." The opinion states that there is no time limit for submission of a declination to HQDA (Headquarters, Department of the Army) Promotions Branch. The opinion also states that the soldier submitted a declination of promotion on 2 May 2002 directly to HQDA Promotions Branch in accordance with Army Regulation 600-8-19, paragraph 1-24f and his declination was accepted and the promotion orders were revoked. The opinion further states that the applicant's request for reconsideration for promotion revocation was disapproved on 18 November 2002. This office recommended that the applicant's request be denied.
11. On 5 June 2003, the applicant was provided 30 days to submit matters in rebuttal to this opinion; however, the applicant did not respond within the time allotted.

12. Army Regulation 600-8-19 governs the enlisted promotions and reductions function of the military personnel system. Paragraph 1-24b states that a soldier may submit a memorandum of declination any time after being recommended for promotion. If the soldier has been promoted, the declination memorandum will be sent through command channels to the PSB not later than 30 days after the effective date of promotion.

13. Paragraph 1-24f of Army Regulation 600-8-19 states that once the declination for promotion is received by the promotion authority, the declination is irrevocable. The effective date will be the date the soldier signed the declination of promotion.

DISCUSSION AND CONCLUSIONS :

1. The applicant was conditionally promoted to SFC with a date of rank and effective date of 1 April 2002.

2. It is noted that the Memorandum for the CY02 SFC Selection Board stated that the failure to decline promotion within 30 days of the effective date constitutes acceptance of the promotion and the two-year service remaining requirement; however, that memorandum is not the regulatory guidance in force in this issue.

3. The evidence of record shows the applicant submitted a memorandum of declination of promotion to SFC on 2 May 2002.

4. Orders were issued to revoke the applicant's promotion to SFC effective 2 May 2002.

5. It is acknowledged that Army Regulation 600-8-19, paragraph 1-24b states that a soldier, once promoted, has 30 days in which to submit his declination of promotion. However, the regulation does not give a time frame in which HQDA must accept the declination.

6. Based on Army Regulation 600-8-19, paragraph 1-24f, once the declination for promotion is received by the promotion authority, the declination is irrevocable.

7. It appears administrative oversights delayed the correction of the applicant's records to show his rank as SSG once again and to stop his being paid as an SFC. However, these oversights do not negate the fact his promotion to SFC was properly revoked at his request.

8. The applicant has failed to show through the evidence submitted with his application or the evidence of record that an error or injustice exists in his case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

AAO _____ LE ______ YM ______ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION :

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  Arthur A. Omartian ____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087293
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040127
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	131.0000
2.
3.
4.
5.
6.