IN THE CASE OF:	  

		BOARD DATE:	    22 February 2012

		DOCKET NUMBER:  AR20110006138 


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 correction of the effective date and date of rank (DOR) for her promotion to sergeant first class (SFC)/pay grade E-7 to 1 October 2007, the original date she was promoted.  She also requests reimbursement of the revocation pay that took place in October 2008 due to her reduction to staff sergeant (SSG)/pay grade E-6.

2.  The applicant states:

* vacancy announcements were not reported in October 2007
* revocation orders were never published following her declination of promotion
* the commander signed and approved the transfer request and transfer orders were published
* there was no further communication from the Medical Readiness Training Command (MRTC) G-1 indicating any other problems until almost 1 year later
* a thorough inspector general (IG) investigation never took place
* she performed the duties as the Headquarters and Headquarters Detachment Sergeant for 3 years

3.  The applicant provides:

* Headquarters (HQ), U.S. Army Reserve (USAR) Command (USARC), memorandum, dated 17 May 2006
* Army Reserve Medical Command (AR-MEDCOM) memorandum, dated 10 October 2007, subject:  Senior Enlisted Promotion Vacancy Submission Process
* email between Mr. E____, AR-MEDCOM, and Ms. E____, MEDCOM G-1, during the period 3-15 October 2007
* HQ, AR-MEDCOM, Orders 07-298-00037, dated 25 October 2007
* HQ, AR-MEDCOM, Orders 07-332-00122, dated 28 November 2007
* 90th Regional Readiness Command Declination Statement, dated 17 December 2007
* DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 7 January 2008
* HQ, AR-MEDCOM, Orders 08-224-00024, dated 11 August 2008
* two letters from the Assistant Inspector General (IG), MRTC, dated 11 August and 13 August 2008
* email between Mr. E____ and Ms. E____, dated 11 August 2008
* her memorandum for record (MFR), dated 5 September 2008
* an MFR from the Command Sergeant Major (CSM), HQ, 7304th MTSB, dated 8 September 2008
* a letter from the Commander, 7304th MTSB, dated 13 December 2008
* HQ, USARC, memorandum, dated 19 February 2009
* email between Mr. E____, AR-MEDCOM, and Ms. E____, MEDCOM G-1, dated 24 February 2009
* an MFR from the Commander, 7304th MTSB, dated 24 April 2009
* two noncommissioned officer evaluation reports
* a DA Form 638 (Recommendation for Award)
* three letters to her Congressional representatives, dated 9 May 2010, 19 August 2010, and 21 January 2011

CONSIDERATION OF EVIDENCE:

1.  HQ, AR-MEDCOM, Orders 07-106-00050, dated 16 April 2007, assigned her to the 7304th MTSB as an SSG effective 15 May 2007.

2.  HQ, AR-MEDCOM, Orders 07-298-00037, dated 25 October 2007, promoted her to SFC effective 1 October 2007.

3.  HQ, AR-MEDCOM, Orders 07-332-00122, dated 28 November 2007, assigned her as an SFC to the 228th Combat Support Hospital (CSH) effective 1 October 2007.  The exact date she reported to the 228th CSH is not available.

4.  On 17 December 2007, she signed a promotion declination statement to remain at the 7304th MTSB.

5.  On 7 January 2008, she requested assignment to the 7034th MTSB.  The Commander, 228th CSH, approved her request.  HQ, AR-MEDCOM, 
Orders 08-030-00044, dated 30 January 2008, assigned her as an SFC to the 7034th MTSB effective 29 February 2008.

6.  HQ, AR-MEDCOM, Orders 08-224-00024, dated 11 August 2008, revoked her promotion to SFC.  No authority is indicated in the orders.

7.  A letter from the IG, MRTC, dated 13 August 2008, responded to her IG request concerning her promotion to SFC.  The IG determined her promotion to SFC was not permissible in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  The IG cited paragraph 5-42 of the regulation which states:

	a.  The Soldier must report for duty in the position to which promoted; comply with reassignment orders, if issued; and serve at least 12 months in the duty position before voluntary reassignment.

	b.  Promotion and reassignment orders will be revoked for a Soldier who fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment orders.

8.  The IG stated she signed an Enlisted Promotion/Declination Statement on 17 December 2007.

9.  According to the MFR from the CSM, HQ, 7304th MTSB, dated 8 September 2008, the vacancies at the 7034th MTSB were not announced and the applicant was promoted into a position at the 228th CSH.  Her declination statement was determined to be invalid by the MRTC G-1 because it was signed over 60 days from the date of promotion.  She reported to the 228th CSH and performed duties with the 7304th MTSB in a rescheduled training (RST) status.

10.  The memorandum from the Commander, 7304th MTSB, dated 13 December 2008, requested her reinstatement to SFC.  He points out the provisions of paragraph 4 of HQ, USARC memorandum, dated 17 May 2006, that state the approval of voluntary requests for transfer prior to completion of the 12-month promotion obligation are at the discretion of the commander.

11.  HQ, USARC, memorandum, dated 19 February 2009, returned the request without action based on there being no authority to reinstate a promotion after a Soldier signs a declination statement.

12.  In an email, between Mr. E____, AR-MEDCOM, and Ms. E____, USAR MEDCOM G-1, dated 24 February 2009, Ms. E____, stated the regulation does not say a declination statement is void if not submitted within 60 days.  She stated that if the statement was void if not signed within 60 days, every Soldier who didn't want to report to the position they were promoted to would refuse to sign the declination and just put the rank back on.  She also stated RST does not denote reporting to the position, the regulation is clear that she must report and maintain that position for 12 months.

13.  The MFR from the Commander, 7304th MTSB, dated 24 April 2009, provides a comprehensive review of official documentation and email records concerning the promotion of the applicant to SFC, her two transfers, and the subsequent revocation of her promotion.

14.  HQ, 63rd Regional Support Command, Moffett Field, CA, 
Orders 10-180-00098, dated 29 June 2010, promoted her to SFC effective 1 July 2010.

15.  An advisory opinion, dated 20 December 2011, was received from HQ, USARC, recommending denial of the applicant's request.  USARC stated she was promoted to SFC effective 1 October 2007 and she submitted a declination of promotion statement on 17 December 2007.  Promotion orders were not revoked until 11 August 2008 due to an error within the command.  During the period from October 2007 to August 2008, she voluntarily served in a position one grade below that of her promotion.  She was later promoted in the same position on 1 July 2010.  USARC stated if the Soldier has been promoted, the declination memorandum is sent through command channels to the promotion authority not later than 60 days after the effective date of promotion.  The declination is irrevocable and the effective date will be the date the Soldier signed the declination of promotion.  There are no regulatory provisions to reinstate a promotion after it has been declined.

16.  USARC memorandum, dated 17 May 2006, subject:  Clarification of Obligation Incurred by Accepting Promotion, clarifies the obligation incurred when accepting a promotion.

	a.  All USAR troop program unit (TPU) enlisted Soldiers who accept promotion to sergeant through sergeant major voluntarily agree to serve in the duty position to which promoted for at least 12 months, even if the promotion requires reassignment to another TPU.  Promotion and reassignment orders will be revoked for Soldiers who decline the promotion or refuse to report.

	b.  Paragraph 4 states approval of voluntary reassignment requests prior to completion of the 12-month promotion obligation, are at the discretion of the commander.  If the commander approves reassignment, the Soldier is released from any remaining duty position, promotion obligation, and cannot be reduced or have the promotion/reassignment orders revoked.

17.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Paragraph 1-24 (Declination of Promotion) states:

		(1)  A promotion is effective as of the date on the promotion instrument.

		(2)  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 promotion authority not later than 30 days (60 days for TPU) after the effective date of promotion.

	b.  Paragraph 5-26 states a Soldier who accepts a promotion voluntarily agrees to serve in the duty position to which promoted, even if the promotion requires reassignment to another unit.  The Soldier must report for duty in the position to which promoted; comply with reassignment orders, if issued; and serve at least 12 months in the duty position before voluntary reassignment, discharge, or retirement.

	c.  Paragraph 5-41 states promotion will only be made against a current vacancy to which the Soldier is or will be assigned.  A promotion is not valid and the promotion orders will be revoked if the Soldier is not or was not in a promotable status on the effective date.

	d.  Paragraph 5-42 states a Soldier who accepts a promotion will incur a 
2-year TPU service remaining requirement from the effective date of promotion.  The Soldier must report for duty in the position to which promoted; comply with reassignment orders, if issued; and serve at least 12 months in the duty position before voluntary reassignment.  Promotion and reassignment orders will be revoked for a Soldier who fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment orders.

18.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.

	a.  A unit training assembly (UTA) is an authorized and scheduled training assembly of at least 4 hours.  At least 1 day's pay or 1 retirement point, or both, is authorized for each assigned or attached person who satisfactorily completes the entire UTA.  This assembly is mandatory for all TPU's.

	b.  RST's will enhance the ability of the unit to perform its assigned mission.  Commanders should use the RST to increase flexibility in scheduling training activities that directly affect the unit's training status.  Commanders will ensure the RST is not abused and that the Soldier or subsection performing the RST is contributing directly to the unit's mission.  The period of training for the RST will be of the same duration as that scheduled for the UTA.  All RST's must be approved before the UTA for which it is substituted.  All participants must be identified by name or by their subsections in the approving document.  Commanders will use RST's when they feel a training activity is better accomplished at a time, date, and/or location other than the scheduled UTA.  The training activities may be scheduled for subsections of the unit or for individual Soldiers.  RST's initiated by the commander for Soldiers or subsections will be annotated on the training schedule and will be the approving document.

DISCUSSION AND CONCLUSIONS:

1.  The MRTC IG pointed out the regulation for acceptance of her promotion and that she signed a declination statement.  However, the IG did not mention the fact that she was reassigned to the 228th CSH as an SFC.  He also did not mention the fact that she was approved by the Commander, 228th CSH, to be reassigned to the 7034th MTSB, thereby waiving the requirement to complete 12 months in the duty position.

2.  According to the USARC memorandum, dated 17 May 2006, if her declination for promotion was accepted or she refused to report to the new assignment, her promotion and her reassignment orders were to have been canceled.  However, her declination was determined to be invalid and she transferred to the 228th CSH as an SFC effective 1 October 2007.  By transferring to the SFC position in the 228th CSH, the argument as to the validity of the declination for promotion and the "60-day" rule becomes irrelevant.  If she failed to report, her promotion and transfer orders would have been revoked whether she signed a declination statement or not.  However, she complied with the requirements for her promotion.

3.  She requested reassignment to the 7034th MTSB even though she had not completed the 12-month promotion obligation.   The commander approved the reassignment and therefore released her from any remaining duty position promotion obligation.  According to the USARC memorandum, dated 17 May 2006, upon this release her promotion/reassignment orders cannot be revoked.

4.  The email, dated 24 February 2009, from USAR ARMEDCOM, stated if a declination were considered void if signed after 60 days then Soldiers who didn't want to report to the position they were promoted to would refuse to sign and just put the rank back on.  However, paragraph 5-42 of Army Regulation 600-8-19 is specific in stating that if a Soldier fails to decline a promotion based on a concurrent reassignment and who refuses to comply with the reassignment order they will have their  promotion and reassignment orders revoked.  The applicant did not fail to comply with her assignment orders, she did comply, and they were never revoked.  Therefore, this argument is without merit.

5.  Army Regulation 600-8-19 does not address RST in any way.  Orders issued by HQ, USARC, show she was transferred to the 228th CSH as an SFC and she was transferred back to the 7034th MTSB as an SFC.  Whether or not an individual is placed in an RST status is at the discretion of the commanders involved.

6.  If a Soldier has been promoted, the declination memorandum will be sent through command channels to the promotion authority not later than 30 days (60 days for TPU) after the effective date of promotion.  Because she signed the declination memorandum more than 60 days after the effective date of promotion, it would be reasonable to determine the declination was invalid.  However, had she refused to comply with the transfer orders, BOTH the promotion orders and the transfer orders were required to be revoked.

7.  Prior to her transfer, her declination of promotion was determined to be invalid because she signed it more that 60 days after the effective date of her promotion. 
However, she did not refuse to comply with the transfer orders and she transferred as an SFC to the 228th CSH.  She was then approved for transfer back to the 7034th MTSB as an SFC 5 months later and her promotion was revoked 6 months after that.  It is not equitable to make a determination and inform the individual a declination statement is invalid, transfer her twice in the grade she was promoted to, then revoke the promotion 11 months later.

8.  The USARC advisory opinion states she voluntarily served in a position one grade below that of her promotion to SFC during the period October 2007 to August 2008.  USARC then states she was promoted to SFC in the same position effective 1 July 2010.  During this period she was transferred as an SFC to the 228th CSH and then back to the 7034th MTSB.  There is no explanation as to which command she was serving in the lower-grade position or how the position was a grade lower than hers and then she was promoted to the same position almost 2 years later.

9.  Therefore, as a matter of equity, her DOR and effective date of promotion should be corrected to 1 October 2007.  In addition, she should be reimbursed any pay and allowances that were recouped due to the revocation of her promotion.

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 changing her DOR and effective date of promotion to SFC to 1 October 2007.

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 in addition to any pay and allowances already recouped.



      _______ _  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)                                         AR20110006138



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ABCMR Record of Proceedings (cont)                                         AR20110006138



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