IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110010508 


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 retention of promotion to sergeant major (SGM)/pay grade E-9 with an effective date of 15 January 2009.

2.  He states:

	a.  he submitted his promotion packet to the 99th Regional Support
Command (RSC), who processed it and placed him on the Permanent Promotion Recommended List (PPRL) for a period of two years;

	b.  in January 2009, he received a telephone call from the 99th RSC notifying
him he had been selected and promoted to E-9;

	c.  he received promotion orders on 13 February 2009 with an effective date
of 15 January 2009;

	d.  his official military personnel file reflected his promotion to SGM/E-9;

	e.  in addition, he was assigned to the 75th Division located in Edison, NJ
with an authorized paragraph and line number;

	f.  his promotion packet was submitted and processed in a timely manner in
accordance with Army Regulation 600-8-19 (Enlisted Promotions); and

	g.  the 99th RSC erred.

3.  He provides:

* two orders
* DA Form 4187 (Personnel Action), dated 19 November 2009, with three attachments
* memorandum from Headquarters, 80th Training Command (TASS), dated 19 August 2011
* 97 pages of email dating from 13 February 2009 through 18 February 2010
* the 99th RRC Enlisted (December 2007) PPRL to SGM

CONSIDERATION OF EVIDENCE:

1.  After prior enlisted active duty service in the U.S. Navy, the applicant enlisted in the U.S. Army Reserve (USAR) on 6 June 1989 and has served continuously since that date.  He was initially awarded MOS 71L (Administrative Specialist).  He was subsequently awarded MOS 75H (Personnel Services Specialist) in 2000, which converted to MOS 42A Administrative Specialist) in 2004.  He was promoted to master sergeant/pay grade E-8 on 1 February 2002.

2.  He submitted a copy of the 99th RRC Senior Enlisted Promotion Selection Board Announcement for promotion consideration to Sergeant Major.  The board was scheduled to be in session from 16 to 20 January 2007.

3.  Orders Number A-05-809204, issued by U.S. Army HRC, St Louis, MO, on 
19 May 2008 ordered him to active duty, effective 3 June 2008, to be assigned to the Headquarters, USAR Element, 189th Infantry Brigade, at Fort Bragg 
for contingency operation for active duty operational support in support of OEF.  The period of active duty was not to exceed 365 days.

4.  Orders Number 09-044-00001, issued by Headquarters, 80th TASS, dated 
13 February 2009, promoted him to SGM in MOS 42A with an effective date of 15 January 2009.  His additional instructions stated:

	a.  his promotion was awarded with the condition he complete the U.S. Army
SGM Course within 36 months from the effective date of the order; and

	b.  he was assigned to the 75th Battle Command Training Division, 
2d Brigade in Edison NJ upon his release from active duty.

5.  Orders Number 09-230-00005L, issued by Headquarters, 80th TASS, on 
18 August 2009, revoked the orders promoting him to SGM with de facto status.
6.  He submitted 97 pages of email traffic dated from 21 August 2009 to 25 April 2011 between himself, the Chief, Enlisted Readiness Branch, 80th TASS G1, Enlisted Management Branch 99th RSC, and the USAR Command G1, Enlisted Management Branch that address:

* the identification of yet another erroneous promotion to SGM
* the revocation of the applicant’s promotion to SGM
* his request for exception to policy to be reinstated to SGM
* the lack of communication regarding the status of his exception to policy
* recommendation that he apply to this Board 

7.  He submitted a DA Form 4187, dated 13 August 2011, which shows he requested an exception to policy to retain his promotion to SGM to the Commander, 80th TASS, Richmond, VA which included the following attachments:

* Promotion Order Number 09-044-00001, dated 13 February 2009
* Revocation Order Number 09-230-00005L, dated 18 August 2009
* three personnel statements requesting exception to policy regarding retention of his promotion  

8.  He submitted a memorandum from the Human Resource Officer, Headquarters, 80th TASS, Richmond, VA, dated 19 August 2011, nonconcurring with his request to retain his promotion due to him being erroneously promoted into a position that was not advertised as a vacancy during the months of January and February 2009.

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Management Division, Headquarters, USAR Command, Fort Bragg, NC, dated 16 September 2011, which recommended disapproval of the applicant’s reinstatement of promotion to SGM/E-9 for the following reasons:

	a.  he was erroneously promoted to SGM and he was promoted out of sequence order into a position that was not a vacancy for promotion.

	b.  his promotion board convened on 20 January 2007.  Soldiers who have
not been promoted within 2 years from the board appearance date will be automatically removed from the PPRL.  His erroneous promotion orders were not published until 13 February 2009.


	c.  The instrument announcing erroneous promotions will be revoked and 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.

	d.  USAR Command stated, in order to shape the force as the Chief, Army Reserve has directed, total transparency in processing promotions must be maintained by upholding all of the published guidance and regulatory requirements.

	e.  USAR currently had 54 authorized E-9 42A positions with 132 42A SGMs assigned; therefore, there was no valid vacancy at the time of his erroneous promotion or at the time the advisory opinion was rendered; therefore, there was still no valid vacancy that will allow him to be promoted.

10.  On 16 September 2011, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  

11.  On 11 October 2011, he responded by reiterating his original request for restoration and retention of his promotion to SGM.  He recommends concentrating on the imperfect process, ensuring the issue does not affect Soldiers in the future, and requests reversal of the revocation of his orders effective 15 January 2009.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Paragraph 1-16 states 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.

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

	c.  Paragraph 5-38 states the convening authority will take the names of those Soldiers on the promotion recommended list and establish or integrate them on to the PPRL.

	d.  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.

	e.  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 order will be revoked if the Soldier is not, or was not, in a promotable status on the effective date.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence shows he was considered and recommended for promotion to SGM by the January 2007 PPRL.  He was promoted on 15 January 2009.

3.  The issues of his being promoted out of sequence and not in a valid vacant position were beyond his control.  The mistakes made in the processing of his promotion were clearly not his fault, he acted in good faith, and he 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 his records to show he was promoted to the rank of SGM with a DOR and effective date of 15 January 2009.  Headquarters, 80th Training Command (TASS), Orders 09-230-00005L, dated 18 August 2009, which revoked his promotion and granted de facto status should be voided.  In addition, he should be paid any and all back pay and allowances to which he is entitled to based on his 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 09-230-00005L, dated 18 August 2009, and removing these orders from his OMPF and

	b.  restoring the validity of Headquarters, 80th Training Command (TASS), Orders 09-044-00001, dated 13 February 2009, promoting him to sergeant major in MOS 42A with a date of rank (DOR) and effective date of 15 January 2009.

2.  The Board further recommends that Defense Finance and Accounting Service audit his military pay account to determine the pay he is owed as a result of the above correction and provide him 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



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ABCMR Record of Proceedings (cont)                                         AR20110010508



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