IN THE CASE OF:	

		BOARD DATE:	    5 January 2010

		DOCKET NUMBER:  AR20090011763


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests de facto promotion status for his erroneous promotion to sergeant (SGT)/E-5 during the period from 24 November 2007, the date of his erroneous promotion, to 15 March 2008, the last date he was paid as an E-5.

2.  The applicant states he was promoted to SGT by his unit in Afghanistan after he had been medically evacuated from theater.  In March 2008, he learned his promotion was erroneous and that he had incurred a debt to the government based on the erroneous payment of E-5 pay.  He was placed on the Temporary Disability Retired List (TDRL) by reason of physical disability on 27 August 2008 and once again promoted to SGT on the same date.

3.  The applicant provides:

	a.  a DD Form 2789 (Waiver/Remission of Indebtedness Application), dated 27 October 2008;

	b.  a DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 27 August 2008;

	c.  a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 27 August 2008;

	d.  a memorandum for record, dated 2 December 2008, supporting waiver/remission of indebtedness; and

	e.  various leave and earnings statements and Defense Finance and Accounting Service (DFAS) documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a South Carolina Army National Guard (SCARNG) member serving in the rank of corporal/E-4.  On 22 June 2004, he entered active duty in support of the Global War on Terror.

2.  The applicant deployed to Afghanistan on 16 July 2007.  While in Afghanistan, he suffered a lacunar stroke and was medically evacuated on or about 7 October 2007.  Following his evacuation, his command published promotion orders.  Headquarters, Combined Joint Task Force Phoenix VI, Camp Phoenix, Afghanistan, Orders 07-328-00005, dated 24 November 2007, promoted the applicant to SGT in accordance with the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  The effective date of promotion was 24 November 2007.

3.  Subsequent to his medical evacuation, the applicant entered the Army Physical Disability Evaluation System (PDES) for a determination of fitness.  During that time, he learned his promotion to SGT was erroneous and on 12 March 2008 his promotion was revoked by Headquarters, Combined Joint Task Force Phoenix VI, Camp Phoenix, Afghanistan, Orders 072-001, dated 12 March 2008.  This created an indebtedness for overpayment of basic pay from 24 November 2007 through 15 March 2008 and DFAS began recoupment action.

4.  A physical evaluation board found the applicant unfit for continued service.  He was placed on the TDRL on 27 August 2008.  Also on 27 August 2008, the SCARNG promoted him to the rank of SGT/E-5.

5.  The applicant underwent a TDRL re-evaluation on 16 October 2009.  He was determined to be permanently unfit and was removed from the TDRL and permanently retired as an SGT/E-5 on 4 November 2009.

6.  In the processing of this case, an advisory opinion was obtained from NGB which recommends approval of de facto status for the applicant's promotion to SGT/E-5 from 24 November 2007 through 15 March 2008.  The opinion cites Army Regulation 600-8-19 stating the applicant was promoted by orders, "occupied the higher grade in good faith…discharged the functions of the higher grade," and was not statutorily barred from receiving the pay of an SGT/E-5.  The applicant was provided an opportunity to respond to the advisory opinion, but did not do so.
7.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  It provides, in pertinent part, that instruments announcing erroneous promotions will be revoked.  When a Soldier has been erroneously promoted and has received pay at the higher grade, a determination of de facto status may be made only to allow the Soldier to keep any pay and allowances received at the higher grade.  In determining whether a Soldier is entitled to de facto status, a factual evaluation must be made to determine whether a DA Form 4187 (Personnel Action) or promotion order has been issued, whether the Soldier occupied the higher grade in good faith, whether the Soldier actually discharged the functions of the higher grade, and whether there is no absolute statutory bar to the Soldier's receipt of the pay at the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests de facto recognition of his erroneous promotion to SGT/E-5 on 24 November 2007.

2.  Army Regulation 600-8-19 provides a determination of de facto status may be made only to allow the Soldier to keep any pay and allowances received at the higher grade.  De facto status requires a determination whether:

	a.  a promotion instrument was issued,

	b.  the Soldier occupied the higher grade in good faith,

	c.  the Soldier actually discharged the functions of the higher grade, and

	d.  there is no absolute statutory bar to the Soldier's receipt of the pay at the higher grade.

3.  In the applicant's case, a promotion order was issued, he occupied the higher grade in good faith, and he was not statutorily barred from receipt of E-5 pay.  However, notwithstanding the NGB advisory opinion, the applicant did not actually discharge the functions of his higher grade because he was promoted while in the PDES and was never returned to duty.

4.  The applicant is completely blameless in the matter of his erroneous promotion and his resultant indebtedness.  Further, had he not suffered a debilitating stroke, he most certainly would have performed the duties of an SGT/E-5.  Therefore, as an exception to policy, it would be in the interest of justice and equity to grant the applicant de facto status for his erroneous promotion to SGT/E-5 and to cancel the indebtedness created by his erroneous promotion.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by granting to him de facto promotion status and by canceling his indebtedness and refunding to him all monies previously collected to satisfy that debt.



      _______ _ X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090011763



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ABCMR Record of Proceedings (cont)                                         AR20090011763



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