BOARD DATE:	7 July 2011

		DOCKET NUMBER:  AR20100024543 


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 to be reinstated to the rank of sergeant major (SGM)/pay grade E-9 with an effective date of 15 October 2008.

2.  The applicant states her request for an exception to policy to retain her promotion was submitted through her unit to the Headquarters, Department of the Army, Deputy Chief of Staff, G-1, and was disapproved.

3.  The applicant provides her request for an exception to policy to retain her promotion to SGM, dated 19 November 2009, with enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 1 January 1981.  She was awarded military occupational specialty (MOS) 75H (Personnel Services Specialist) which later converted to MOS 42A (Human Resources Specialist).  She was promoted to master sergeant on 1 February 2002.

2.  She was ordered to contingency operations-active duty for operational support (CO-ADOS) with assignment to U.S. Army Human Resources Command (HRC), Alexandria, VA, effective 4 February 2009 not to exceed 365 days.

3.  Her name appears on the 99th Regional Readiness Command (RRC) [now known as the 99th Regional Support Command (RSC)] Permanent Promotion Recommended List (PPRL) with a board date of January 2007.

4.  Headquarters, 80th Training Command (The Army School System (TASS)), Orders 09-029-00002, dated 29 January 2009, promoted her to sergeant major in MOS 42A with a date of rank (DOR) and effective date of 15 February 2009.  Headquarters, 80th Training Command (TASS), Orders 09-029-00003, dated 29 January 2009, amended her DOR and effective date to 15 October 2008.

5.  Headquarters, 80th Training Command (TASS), Orders 09-097-00011L, dated 7 April 2009, revoked her promotion and granted de facto status.

6.  She submitted an exception to policy to retain her promotion to SGM on 24 April 2009.  In her request she stated that:

	a.  She was initially selected for promotion to SGM and placed on the 
16-20 January 2007 list.  In accordance with existing promotion guidance, Soldiers are permitted to remain on the promotion list for a period of 2 years.  As her 2-year period was about to expire, she prepared a follow-on promotion packet which was submitted and received by the 99th RRC on 5 January 2009.

	b.  On 26 January 2009, she received email from a sergeant first class (SFC) from the 99th RSC Boards and Records Branch to call him as soon as possible.  She contacted him and he asked her whether she would be able to remain on CO-ADOS orders if he issued her SGM promotion orders.  After checking with her chain of command at HRC, she informed the SFC that her command supported her remaining on CO-ADOS orders and upon promotion they would assign her to a SGM position.  The applicant received her promotion orders on 29 January 2009.  Her promotion orders state that she would have 12 months upon completion of her CO-ADOS tour to voluntarily or involuntarily be assigned to an appropriate position in accordance with established regulatory guidance.

	c.  On 6 April 2009, she received a call from an SFC in the 99th RSC promotion section informing her that the 99th RSC had been directed by the U.S. Army Reserve Command (USARC) to revoke her promotion orders.  The 99th RSC had erroneously promoted her and she had been placed in a position held by another Soldier.

	d.  She fully understands the Reserve promotion policy and the ADOS promotion policy and she has followed both policies throughout the evolvement of this action.  She accepted the promotion in good faith.

7.  She was released from active duty effective 3 February 2010.  Items 4a and b show SGM and E-9, respectively.

8.  On 7 April 2010, the Director of Military Personnel Management, Office of the Deputy Chief of Staff, G-1, disapproved her exception to policy request.  The disapproval memorandum stated that the administrative decisions leading to her promotion were not consistent with existing Army policy and she was not otherwise eligible for such promotion.  Specifically, the number of sergeants major assigned to the unit in which she was promoted exceeded the number authorized.  The cumulative vacancy policy in Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 5-4, was therefore violated.

9.  In the processing of his case, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, Headquarters, USARC.  The advisory official stated, in effect:

	a.  Soldiers who have not been promoted within 2 years from the board date will be automatically removed from the PPRL.  The applicant's promotion board was 16-20 January 2007 requiring her removal from the PPRL no later than 20 January 2009.  The promotion orders were processed on 29 January 2009; therefore, the promotion was erroneous.

	b.  An overstrength in noncommissioned officers (NCO's) in a pay grade will reduce or eliminate promotion possibility for NCO's in that grade and lower grades.  The unit manning report for the unit in which the applicant was promoted indicates that on the date she was assigned to the position (15 October 2008), there were a total of 8 authorized sergeants major positions and 13 sergeants major assigned; therefore, there was no vacancy.

	c.  As a vacancy is reported, the convening authority will identify the first Soldier on the list who meets the reported requirements.  The 80th Training Command (TASS) did not report the position to which the applicant was promoted as a result of the overstrength explained above.  Furthermore, the applicant was not the first Soldier on the list.  She was actually promoted out of sequence.  Therefore; the promotion was erroneous.

	d.  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 Solider to keep any pay and allowances received at the higher grade.  The applicant's promotion orders were revoked in de facto status allowing her to keep the pay and allowances she received as a result of the erroneous promotion.

	e.  The applicant's promotion was erroneous; therefore, no relief is warranted.

10.  On 9 February 2011, the advisory opinion was provided to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 21 April 2011, she responded by stating her knowledge of promotion regulations, processes, and procedures is quite extensive; however, the memorandum from the Deputy Chief of Staff, G-1, Headquarters, USARC, quoting the regulations, did not address the morality of the entire defective process.  All the misfortune endured from the situation has been covered by her, due to no personal fault.  She reiterates her original request.  She recommends concentrating on the imperfect process, ensuring the issue does not affect Soldiers in the future, and requests reversal of the revocation of her orders effective 15 October 2009.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 5, prescribes policy for USAR Soldiers assigned to troop program units, Army Reserve elements, and multi-component units.  Soldiers selected for promotion by boards are identified on a list maintained by the promotion authority.  Promotion from the list is by sequence and MOS based on a position vacancy within a reasonable distance of the Soldier's residence.

	a.  Paragraph 5-4 defines cumulative vacancy policies.  An overstrength in NCO's in a pay grade will reduce or eliminate promotion possibility for NCO's in that grade and lower grades.

	b.  Paragraph 5-40 states the selection list is not a permanent selection list.  Each promotion selection list issued by a promotion board is a new report and will be integrated with the PPRL.  Soldiers who have not been promoted within 2 years from the board appearance date will be automatically removed from the PPRL.  Removal from the PPRL does not preclude consideration by future boards.

	c.  Paragraph 5-41 states promotion will only be made against a current vacancy to which the Soldier is or will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are acknowledged and determined to have merit.

2.  The evidence shows she was considered and recommended for promotion to SGM by the January 2007 PPRL.  She was promoted on 29 January 2009.

3.  The issues of her being promoted out of sequence and not in a valid vacant position were beyond her control.  The mistakes made in the processing of her promotion were clearly not her fault, she acted in good faith, and she should not have to be penalized for the mistakes of others whose job it is to ensure information is accurate and Soldiers are treated fairly.

4.  Therefore, it would be equitable to correct her records to show she was promoted to the rank of SGM with a DOR and effective date of 15 October 2008.  Headquarters, 80th Training Command (TASS), Orders 09-097-00011L, dated 7 April 2009, which revoked her promotion and granted de facto status should be voided.  In addition, she should be paid any and all back pay and allowances to which she is entitled to based on her promotion to SGM/E-9.

BOARD VOTE:

__x___  ___x_____  _____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_________  _______  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

	a.  voiding Headquarters, 80th Training Command (TASS), 
Orders 09-097-00011L, dated 7 April 2009, and removing these orders from her OMPF and

	b.  restoring the validity of Headquarters, 80th Training Command (TASS), Orders 09-029-00002, dated 29 January 2009, as amended by Headquarters, 80th Training Command (TASS), Orders 09-029-00003, dated 29 January 2009, promoting her to sergeant major in MOS 42A with a date of rank (DOR) and effective date of 15 October 2008.



2.  The Board further recommends that Defense Finance and Accounting Service audit her military pay account to determine the pay she is owed as a result of the above correction and provide her all back pay and allowances.



      __________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)                                         AR20100024351



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100024543



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1