IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100026588 


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 reinstatement to the rank/grade of staff sergeant (SSG)/E-6. 

2.  The applicant states he was ordered to active duty in August 2004 and he was promoted to SSG/E-6 on 1 October 2007.  He received an Article 15 on 5 October 2007 but the punishment consisted of a suspended reduction, extra duty, and a reprimand.  He received E-6 pay until 7 December 2007 when his promotion orders were revoked and he was required to repay all the money received at the E-6 grade as a lump sum forcing him and his family into financial hardship.  He was initially told his grade would be reinstated upon his release from active duty (REFRAD); however, that did not happen.  When he resubmitted his promotion packet for consideration and/or integration to the U.S. Army Reserve (USAR) Permanent Promotion Recommended List (PPRL), it was rejected because his personnel records showed he was already a SSG/E-6.  He followed up through email with various individuals and even through the Office of the Inspector General (IG).  He believes the IG's decision is wrong and unjust.  He refuses to suffer the humiliation of wearing sergeant (SGT)/E-5 stripes in front of his peers.

3.  The applicant provides:

* a memorandum from the IG, dated 7 September 2010
* a memorandum from his senior commander, dated 25 October 2009
* 
a memorandum from another senior commander, dated 22 July 2010 a copy of Orders 07-277-00008, promoting him to SSG, dated 4 October 2007
* Orders 07-337-00001, dated 3 December 2007, revoking Orders
07-277-00008
* DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 20 July 2007 and 4 January 2008
* a DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 13 March 2009
* exchange of emails between 29 April 2008 and 13 November 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the USAR on 22 September 2001 and he held military occupational specialty 91W (Health Care Specialist).  He also completed the occupational therapy course in September 2003.  He was assigned to the 4010th Hospital at New Orleans, LA.

2.  He was ordered to active duty on 16 August 2004 and he was promoted to SGT/E-5 on 1 November 2004.  He was initially assigned to the U.S. Army Medical Department Activity (MEDDAC), Fort Polk, LA, but he was reassigned to USA MEDDAC, Fort Carson, CO, on or around June 2005.

3.  It appears the applicant's records went before a promotion board for promotion to SSG/E-6 and that his name was incorporated on the PPRL.

4.  On 20 July 2007, the applicant's immediate commander initiated a FLAG against the applicant for adverse action.  It appears he was under investigation by the U.S. Army Criminal Investigation Command (CID).

5.  On 4 October 2007, Headquarters, 807th Medical Command, Seagoville, TX, published Orders 07-277-00008 announcing the applicant's promotion to SSG/
E-6, effective 1 October 2007.  The orders stated "The promotion is not valid and this order will be revoked if he is not in a promotable status on the effective date of promotion."

6.  On 5 October 2007, the applicant's immediate commander notified the applicant that he was considering whether he should punish him under Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* Larceny of approximately 180 Percocet pills
* 
Wrongfully obtaining approximately 180 Percocet pills without a valid prescription
* Larceny of approximately 90 Vicodin pills
* Wrongfully obtaining approximately 90 Vicodin pills without a valid prescription
* Wrongfully possessing approximately 180 Percocet pills
* Wrongfully possessing approximately 90 Vicodin pills
* Wrongfully distributing approximately 180 Percocet pills
* Wrongfully distributing approximately 90 Vicodin pills
* Wrongfully stealing approximately 180 Percocet pills
* Wrongfully stealing approximately 90 Vicodin pills

7.  On 6 November 2007, he accepted nonjudicial punishment under Article 15 of the UCMJ for the above offenses.  His punishment consisted of a reduction to specialist (SPC)/E-4 (suspended until 28 February 2008), 25 days of extra duty, and a written reprimand.  He elected not to appeal this punishment.

8.  On 3 December 2007, Headquarters, 807th Medical Command, Seagoville, TX, published Orders 07-337-00001 revoking the erroneous promotion orders that announced the applicant's promotion to SSG/E-6 effective 1 October 2007.

9.  On 4 January 2008, his immediate commander removed the FLAG by reason of having closed the case favorably.

10.  He was honorably released from active duty on 9 February 2008 to the control of his USAR unit.  Items 4a (Grade, rate or Rank) and 4b (Pay Grade) show the entries "SGT" and "E-5" and item 12h (Effective date of Pay Grade) shows the entry "3 December 2007."

11.  The applicant provides:

	a.  a memorandum for record submitted by his senior commander, dated
25 October 2009, wherein he indicated that the applicant's case was closed favorably.  The CID investigation was turned over to the Medical Company.  After the revocation of the promotion orders, his promotion packet was to be resubmitted in the spring of 2008 after his demobilization but the higher headquarters deemed he was already an E-6.  He was told to wear the rank of SSG and he continues to do so; however, his pay record reflects E-5 based on the revocation of his E-6 promotion orders.  This has caused him a financial hardship.

	b.  a memorandum addressed to the Army Medical Command, dated 22 July 2010, wherein the applicant's current senior commander recommended the applicant be reinstated effective the day the original flag was removed on 4 January 2008 and restoration of back pay and allowances.

	c.  a memorandum from the Deputy IG of the 81st Regional Support Command, Fort Jackson, SC, dated 7 September 2010, wherein the author states that after conducting a thorough inquiry and reviewing all the facts, and in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 5-27a(11-b), the applicant should have been removed from the PPRL when he received the Article 15 on 6 November 2007.  His unit failed to process the reduction in the RLAS (the USAR Regional Level Application Software) when the orders were revoked.

	d.  an extensive history of email exchange with various individuals within and outside his chain of command regarding how to resolve his promotion issue. 

12.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 1-10 lists the various reasons Soldiers (SPC through master sergeant (MSG)) are considered non-promotable to a higher grade.  Among these reasons are: 

	a.  a Soldier was punished under Article 15 of the UCMJ, including suspended punishment.  The Soldier will be promotable on the day of completion of the period of correctional custody, suspension, restriction, extra duty, and or suspended forfeiture of pay, whichever occurs later.

	b.  a Soldier has incurred a flag under the regulation governing flags.  The failure to initiate DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag.

13.  Paragraph 1-16 of this regulation states the 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.  De facto status may be granted by the promotion authority or higher commander after legal review by the servicing Staff judge Advocate's office.  A U.S. property and fiscal officer is the final approval authority for USAR and Army National Guard (ARNG) personnel.  In determining whether a Soldier is entitled to de facto status, a factual evaluation must be made to determine whether:

	a.  a promotion order has been 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 his/her receipt of the pay at the higher grade.

14.  Chapter 5 prescribes policy for the promotion of USAR Soldiers assigned to troop program units (TPUs).  It states in:

	a.  Paragraph 5-2b, field-grade commanders of any unit authorized a commander in the grade of lieutenant colonel or higher may promote Soldiers assigned to units that are attached or assigned to their command; Soldiers in units attached to their command will be promoted only after coordination with the parent unit for determination of a valid vacancy.  They are the convening authority for TPUs/AREs/multicomponent units located within their command area of operations.  Promotion and promotion orders publishing authority is retained by the Soldiers assigned command.

	b.  Paragraph 5-2d, the commander of a Regional Support Command or Army Reserve Command is the regional promotion list manager for all USAR units, elements, and Soldiers located within his/her regional area of responsibility and operations.  The regional promotion list manager will review promotion selection board results and operations for administrative/procedural accuracy and compliance with established policy; incorporate Soldiers recommended by promotion boards onto the regional PPRL for all Soldiers residing within his/her regional area of responsibility; consolidate regional vacancies; identify promotions for available vacancies by point sequence (SGT - SSG) within his/her regional area of responsibility; notify the promotion authority to publish promotion orders; and add, update, and remove promotion list entries as necessary.

	c.  Paragraph 5-6, to be promoted to SGT or SSG, the Soldier must be in a promotable status per paragraph 1-10 of this regulation; be listed on a valid PRPL; be in the proper sequence order when promoted off the list; and have a passing APFT (Army Physical Fitness test) score within 12 months of the date of the promotion order.

	d.  Paragraph 5-27, the promotion authority will direct the name of a Soldier be removed from the recommended list if the Soldier is reduced in grade 

regardless of the reason; did not meet the criteria in this chapter and was placed on the list in error; was under suspension of favorable personnel actions per the regulation governing flags and the final report is closed as "unfavorable" or "disciplinary action taken"; or is under any of the following adverse actions: convicted by court-martial while on the promotion standing list or received punishment imposed under the provisions of Article 15 of the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows the applicant was flagged for adverse action (investigation by the CID) on 20 July 2007.  This flag placed him in a non-promotable status.  It appears he was erroneously promoted to the rank/grade of SSG/E-6 on 1 October 2007 while he was in a flagged status.  When the error was discovered, his promotion order was revoked in December 2007. 

2.  He received NJP on 6 November 2007.  By regulation, the promotion authority will direct the name of a Soldier be removed from the recommended list if the Soldier received punishment imposed under the provisions of Article 15 of the UCMJ.  His name was accordingly removed from the PPRL.

3.  It appears his unit failed to process the reduction in the RLAS when the orders were revoked.  Nevertheless, this administrative failure by his unit does not mitigate the two important facts in his case: he was in a non-promotable status at the time the promotion order was issued and once he received his Article 15, his name was required to be removed from the PPRL.

4.  In view of the foregoing evidence, he is not entitled to the requested relief.

5.  The fact that pay and allowances was collected from the applicant's pay is noted; however, he was not entitled to the promotion.  Nevertheless, Army Regulation 600-8-19 states that 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.  The applicant is advised to consult with his unit personnel officer if he desires to pursue de facto status in this matter.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  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.



      ____________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)                                         AR20100026588



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026588



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1