IN THE CASE OF:	  

		BOARD DATE:  17 May 2012

		DOCKET NUMBER:  AR20110016814 


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 sergeant (SGT)/E-5 and correction of her records to show she was promoted to SGT/E-5 with a date of rank (DOR) of September 2004.

2.  The applicant states:

	a.  She joined the U.S. Army Reserve (USAR) in September 2004 in San Antonio, TX, and received a promotion order in the mail promoting her to SGT.  At the time, the retention noncommissioned officer (NCO) received her 201 file and when she (the applicant) requested the documents he stated he had lost them.  Her copy of the [promotion order] was destroyed by her former spouse.  She repeatedly asked for these documents and she did not receive them.  These actions have caused unmentionable hardship to her and her family.

	b.  She inquired about this problem on many occasions and encountered a brick wall.  No one would assist her in resolving this issue except two NCOs.  She feels the glitches in the system of record keeping unjustly hindered her Army career.  She cannot move forward in her career because of this injustice.  In the interest of justice, please reinstate her rank so she can serve her country to the best of her abilities. 

3.  The applicant provides:

* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Five DA Forms 2166-8 (NCO Evaluation Report (NCOER))
* Four pages titled Soldier Transactions
* Two orders
* DA Form 4187 (Personnel Action)
* 15 pages of email
* A memorandum
* A letter
* ARPC (Army Reserve Personnel Command) Form 3735-E (Army Reserve Status and Address Verification)
* Army Human Resources Command (AHRC) Form 2370-R (Application for USAR Active Guard Reserve (AGR) Duty)
* AHRC Form 2370-1-R (USAR AGR Selection Board Eligibility Checklist)
* DD Form 2648 (Preseparation Counseling Checklist)
* An automated Enlisted Record Brief (ERB)
* DA Form 2-1 (Personnel Qualification Brief)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 24 April 2000 in the rank/grade of private(PV2)/E-2 and she held military occupational specialty (MOS) 92G (Food Service Specialist).  She was advanced to the rank of private first class (PFC) on 1 February 2002.

2.  She was honorably released from active duty on 23 February 2003 in the rank of PFC and she was transferred to the USAR Control Group (Reinforcement).  She completed 3 years of creditable active service.

3.  Orders C-11-426414, issued by HRC, St. Louis, MO, dated 23 November 2004, released her from the USAR Control Group (Reinforcement) and reassigned her to the 5501st U.S. Army Hospital, Troop Program Unit (TPU), San Antonio, TX, effective 23 November 2004.  These orders show her rank as SGT and DORRES [DOR Reserve] of 1 February 2002.

4.  She was mobilized as a member of the USAR in support of Operation Iraqi Freedom and she entered active duty on 5 August 2005.  She was assigned to the 425th Transportation Company, Fort Hood, TX.

5.  She was honorably released from active duty on 26 April 2007 and she was transferred back to her Reserve unit.  The DD Form 214 she was issued for this period of service shows her rank as SGT and DOR as 1 February 2002.

6.  During the month of May 2008, she received an annual NCOER that covered 12 months of rated time from 30 April 2007 through 29 April 2008 for her duties while serving in MOS 68J (Medical Logistics Specialist) assigned to the 1880th Medical Detachment, St. Peter, MO.  Her rank is shown as SGT and DOR as 1 February 2002.

7.  On 7 July 2008, she entered the AGR program and she was subsequently assigned to the 965th Dental Company, Seagoville, TX.

8.  During the month of August 2009, she received an annual NCOER that covered 12 months of rated time from 1 August 2008 through 31 July 2009 for her duties while serving in MOS 68J assigned to the 965th Dental Company.  Her rank is shown as SGT and DOR as 1 February 2002.

9.  In an email to HRC-St Louis, dated 18 August 2009, she inquired about her promotion orders to SGT and stated the promotion took place while she was in the Individual Ready Reserve (IRR), she did not have a copy, and she needed the promotion orders as she was putting together a packet for promotion consideration to staff sergeant (SSG).  It is unclear if a response was received from HRC-St. Louis.

10.  On 2 June 2011, the AGR promotions analyst, Health Services Branch, U.S. Army HRC, Fort Knox, KY contacted the Enlisted Procedures and Soldier Actions Branch, HRC, to inquire about the applicant's rank as there was no documentation to show she had ever been promoted to specialist (SPC) or SGT.  The analyst stated the applicant was frustrated as the issue was brought up to HRC-St. Louis in 2009 and nothing was resolved.

11.  On 9 June 2011, the HRC representative contacted the applicant and notified her that if she could not provide documentation to show she had been promoted to SPC and SGT she would be reduced to PFC.  Her rank was subsequently corrected to reflect PFC.

12.  A DA Form 4187, dated 4 July 2011, signed by the Commander, 965th Dental Company, advanced the applicant from PFC to SPC effective 7 July 2008 with a DOR of 7 July 2008.

13.  On 17 February 2012, an advisory opinion was received from the Chief, Personnel Management Division, Headquarters, USAR, Fort Bragg, NC.  The advisory official recommended disapproval of the applicant's request to reinstate her rank to SGT and opined that:

	a.  The applicant was released from the RA on 23 February 2003 as a PFC with a DOR of 1 February 2002, and assigned to the USAR Control Group for 16 months.  In accordance with Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 5-13, the applicant required 24 months time in grade (TIG) as a PFC for advancement to SPC, and another 24 months TIG as a SPC for promotion consideration to SGT.  Additionally, she was required to earn a minimum of 27 retirement points as a member of the IRR or Standby Reserve in either year of a 2-year period prior to the effective date of an advancement or promotion to PV2 through SGT.  The applicant earned only 14 membership points from 24 February 2003 to 7 February 2004 and 15 membership points from 8 February 2005.

	b.  On 23 November 2004, she was reassigned to a Reserve unit in the rank of SGT with a DOR of 1 February 2002.  There is no promotion order to substantiate the rank of SGT; therefore, the rank on the reassignment order cannot be validated.

	c.  In addition, the applicant was advanced to SPC effective 7 July 2008, the date she entered the AGR program.  This advancement was erroneously processed as all AGR advancements with a retroactive promotion date require the DA Form 4187 to be forwarded to the next higher promotion authority explaining the reason for the delay in the promotion and this was not done.

	d.  Based on the above, recommend that:

* All documents in the applicant's file from 1 February 2002 to 23 November 2004 reflecting the rank of SGT be amended to reflect the rank of PFC
* The Army Board for Correction of Military Records (ABCMR) direct HRC to issue a DD Form 215 (Correction to DD Form 214) to correct the rank and DOR on the applicant's DD Form 214, dated 26 April 2007
* All NCOERs be removed from her records

14.  On 17 April 2012, in a response to the advisory opinion, the applicant stated:

	a.  She was reassigned on 23 November 2004 with promotion orders in hand, gave them to the retention NCO, and he misplaced them.  She tried to have HRC find them but nobody took the time to look.  It is negligence on the part of HRC.  She entered the AGR program as a SGT and deployed as a SGT; how could this be without promotion orders.  To change her rank and DOR on her DD Form 214 [for the period ending 26 April 2007] would be degrading.  In regard to her advancement to SPC, she does not disagree with the way it was taken care of but that falls on HRC and not her.  Removing all the NCOERs from her record would be completely degrading.  She worked hard throughout her Army career and she does not deserve this. 

	b.  She has been an NCO for a long time and knows what it means to lead Soldiers.  Her last unit commander recommended her for SSG and she was also recommended by the E-6 board.  She feels she should keep her E-5 stripes and be pinned E-6 for the outstanding job that she does for her Soldiers, unit, and the United States of America.  She has 12 years of service and ten of those were on active duty.  She has a family to take care of and if this is not resolved in her favor it will cause great hardship on her family.

15.  Army Regulation 600-8-19 (Enlisted Promotions), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her SGT rank should be reinstated because she was promoted to the rank in September 2004 but the orders were lost by her unit retention NCO.

2.  The evidence of record shows the applicant was released from the RA in the rank of PFC with a DOR of 1 February 2002.  As she was never advanced to SPC, and did not meet the criteria for advancement to SPC or promotion to SGT, it is implausible to believe the USAR published promotion orders promoting her to SGT in September 2004.  Rather, it appears an error was made and her rank was entered incorrectly when reassignment orders were published on 23 November 2004 showing her rank as SGT (vice PFC) with a DOR of 1 February 2002.  Unfortunately, the error was not identified at the time by the USAR or brought to the unit's attention by the applicant.  As her rank of SGT was due to an error and was not a valid promotion, she is not entitled to the requested relief.

3.  However, the error continued throughout her service in the USAR and she was subsequently mobilized as a SGT, entered the AGR program as a SGT, and received several NCOERs based on the rank of SGT.  Although she raised the issue of a lack of SGT promotion orders in 2009, it was not until June 2011 that the USAR identified the error and her rank was reverted to PFC.  On 4 July 2011, she was advanced to SPC by her unit commander with an effective date and DOR of 7 July 2008.  

4.  The advisory official recommended denial of the applicant's request for reinstatement to SGT as there are no promotion orders to validate that rank and contends her advancement to SPC is also erroneous as the unit commander was not the promotion authority for a retroactive promotion.  The official also recommended all of her records, to include her DD Form 214 for the period ending 26 April 2007, be amended to show her rank as PFC and her NCOERs be removed from her records.

5.  Notwithstanding the advisory opinion, the evidence of record confirms the applicant was assigned as a USAR SGT and performed the duties of a SGT in a satisfactory manner from 23 November 2004 through June 2011.  Therefore, as a matter of equity it would be appropriate to grant her de facto status and allow her to retain any pay and allowances she received as a SGT.  

6.  In addition, as a matter equity it would be appropriate to amend the DA Form 4187, dated 4 July 2011, advancing her from PFC to SPC to show it was approved and signed by the proper authority and was a valid advancement. 

7.  It is the policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  For this reason, the Board will not take any action with regard to changing her DD Form 214 for the period ending 26 April 2007 or removing NCOERs from her Official Military Personnel File.  As such, her NCOERs should remain in her file to document her service as a SGT.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X ___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Showing she was granted de facto status for service in the rank/grade of sergeant/E-5 from 23 November 2004 to an unknown date in June 2011 (one day prior to the date she began receiving pay as a private first class/E-3)
* Showing the DA Form 4187, dated 4 July 2011, advancing her from PFC to SPC was approved and signed by the proper authority and was a valid advancement

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstating her rank to SGT.



      _______ _ 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)                                         AR20110016814



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ABCMR Record of Proceedings (cont)                                         AR20110016814



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