RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           5 April 2005
      DOCKET NUMBER:  AR20040002565


      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:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, de facto status and relief of the
debt incurred as a result of his erroneous promotion to master sergeant/E-8
(MSG/E-8) and overpayment during the period 6 February through 5 August
2003.

2.  The applicant states, in effect, that the United States Property and
Fiscal Officer (USPFO) of the State of Massachusetts (MA) unjustly failed
to recognize de facto status in connection with his erroneous promotion to
MSG/E-8 during the period 6 February through 5 August 2003, and is unfairly
seeking recoupment of entitlements totaling $2,736.00 for this period.  The
applicant claims that he accepted the promotion in good faith and received
the higher pay while performing in the higher rank and pay grade.  He
furthers states that he discharged the functions of the higher grade during
this period and there was no statutory bar to his receiving the pay.  As a
result, he continues to seek relief through a de facto status designation.


3.  The applicant provides a memorandum from his unit Adjutant with eight
attachments in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 6 February 2003, while the applicant was serving on active duty as a
member of the MA Army National Guard (MAARNG), the Office of The Adjutant
General (OTAG) of the State of MA, published Orders Number 37-3.  These
orders authorized the applicant’s promotion to MSG/E-8, effective 1
February 2003.  The applicant assumed a position authorized the higher
grade and began to serve that position immediately upon his promotion.

2.  Massachusetts National Guard (MANG) Orders Number 217-01, dated
5 August 2003, revoked the applicant’s promotion to MSG/E-8.  On 8 August
2003, the applicant was honorably released from active duty and transferred
to the MAARNG.

3.  On 29 October 2003, the Commander, 79th Troop Command, MAARNG,
published a memorandum requesting de facto status for the applicant.  The
commander stated that his headquarters promoted the applicant on 1 February
2003.  At that time, there was no indication that the applicant did not
meet the minimum eligibility requirements for promotion.  He further
explained that subsequently, the Deputy Chief of Staff, Personnel (DCSPER),
MANG, discovered the applicant did not have a valid security clearance,
thus making his promotion erroneous.  As a result, the applicant‘s
promotion was revoked.
4.  The Commander, 79th Troop Command also confirmed the applicant accepted
the promotion in good faith, received pay and allowances and performed the
functions of a MSG/E-8 during the period.  Finally, the commander confirmed
there was no statutory bar to receipt of military pay.

5.  On 5 November 2003, the Deputy Staff Judge Advocate (DSJA), MANG,
reviewed the de facto status request of the Commander, 79th Troop Command.
He concluded that the regulatory requirements for de facto status had been
met in the applicant’s case.  He confirmed that the applicant accepted the
promotion to MSG/E-8 in good faith and that the responsibility to conduct
an agency check rested with the appointing authority as part of the
promotion process and not with the individual being promoted.  He further
concluded that a promotion order had been published, the applicant was paid
at the higher grade and that there was no absolute statutory bar to receipt
of military pay.  Finally, the DSJA found the applicant actually performed
the functions of the higher grade of MSG/E-8 during the timeframe in
question.

6.  On 25 November 2003, the Massachusetts USPFO notified the DCSPER, MANG,
that based upon his review of the applicable law and regulation, he
required the following actions be taken to protect the United States
Government: that the applicant’s reduction be confirmed in the personnel
system; that the applicant’s discharge be confirmed in the personnel
system; and that immediate action be taken against the applicant to recoup
the amount of $2,736.00.

7.  On 25 November 2003, the Massachusetts USPFO also notified the
applicant that the regulation governing the remission or cancellation of
indebtedness for enlisted members stipulated that a debt could not be
remitted or cancelled after a member is discharged from the ARNG unless the
Soldier has reenlisted or extended the term of service, or when a Soldier
is retired, whether the debt occurred before or after retirement.

8.  On 12 December 2003, the applicant was separated from the MAARG with a
general, under honorable conditions discharge (GD).

9.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Personnel Division, National Guard Bureau (NGB).
This official recommends the applicant’s application be approved.  He
further opines that the applicant satisfied all the regulatory criteria for
de facto status as confirmed by the Commander, 79th Troop Command and the
DSJA, MANG.
10.  On 18 November 2004, the applicant concurred with the NGB advisory
opinion provided in his case.

11.  Army Regulation 600-4 contains the policy for the remission or
cancellation of indebtedness to the United States Army.  Paragraph 1-9
outlines indebtedness to the Army that may not be remitted.  It stipulates
that debts to the Army will not be remitted or canceled under the following
circumstances:  after discharge from the ARNG unless the Soldier has
reenlisted or extended the term of service, when a Soldier is retired,
whether the debt occurred before or after retirement; and if a Soldier
receives less than an honorable discharge at time of separation from ARNG.

12.  National Guard Regulation (NGR) 600-200 establishes standards,
policies and procedures for the management of ARNG enlisted Soldiers.
Chapter 11 prescribes the policy and procedure for advancement, promotion,
lateral appointment, reduction and restoration for all ARNG enlisted
Soldiers.

13.  Paragraph 11-11 of NGR 600-200 contains guidance on erroneous
promotions and de facto status.  It states, in pertinent part, that when an
erroneous promotion is detected, service in the higher grade may have been
in de facto status when the Soldier was not at fault, but the promotion was
erroneously accomplished.  Even though the promotion order is revoked, the
promotion authority or higher commander, after legal review, by the
servicing SJA, may determine de facto status exists when the following
conditions exist:  the Soldier accepted promotion in good faith; a
promotion order was issued; the Soldier receive pay in the higher grade;
there was no absolute statutory bar to receipt of military pay; and the
Soldier actually discharged the functions of the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should have been granted de facto status
during the period 1 February through 5 August 2003 was carefully considered
and found to have merit.

2.  By regulation, the promotion, or higher authority, may determine a de
facto status exists when it is determined, after an appropriate SJA review,
that the Soldier accepted promotion in good faith; a promotion order was
issued; the Soldier receive pay in the higher grade; there was no absolute
statutory bar to receipt of military pay; and the Soldier actually
discharged the functions of the higher grade.
3.  The Massachusetts USPFO correctly cites the rules for
cancellation/remission of indebtedness in his 25 November 2003 memoranda.
However, the facts of this case do not appear to support the application of
these regulatory provisions in this case.

4.  The evidence of record confirms the applicant’s erroneous promotion to
MSG/E-8 was through no fault of his own and that he served in the higher
grade in good faith during the period in question.  The record also clearly
shows that the regulatory criteria necessary to declare de facto status for
the period the applicant served as a MSG/E-8 was satisfied, and that the
appropriate State command and legal authorities appropriately determined
the applicant’s service as a MSG/E-8 was performed in a de facto status.
Therefore, no debt to the Government should have ever been established as a
result of the applicant’s erroneous promotion.

5.  In view of the facts of this case, since no debt should have been
established, the rules applicable to cancellation/remission of a debt are
not applicable in this case.  Therefore, it would be appropriate and serve
the interest of justice and equity to correct the applicant’s record to
show that upon the revocation of his erroneous promotion on 5 August 2003,
the appropriate command and legal authorities determined the applicant’s
good faith service as a MSG/E-8 was served in a de facto status.  Further,
based on this determination, the record should also be corrected to show no
debt to the Government was incurred by the applicant, or established by the
Government based on this erroneous promotion.

6.  Although the Board has no authority to correct State ARNG records,
governed under Title 32, the Board is of the opinion that insofar as the
Department of the Army is concerned, it would be in the interest of justice
to correct the ARNG records of the individual concerned as recommended
below.
BOARD VOTE:

___MDM_  __TEO__  __JRM __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Insofar as records of the Massachusetts Army National Guard are concerned,
the Board recommends that The Adjutant General of the State of
Massachusetts correct the records of the individual concerned to show he
was granted de facto status for the period he served as a master sergeant/E-
8 from 1 February 2003 through 5 August 2003; and by showing he never
incurred a debt as result of his erroneous promotion.




            ____Mark D. Manning______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002565                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/05                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |2003/12/12                              |
|DISCHARGE AUTHORITY     |NGR 600-200                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.283    |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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