IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110017125 


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 her rank/grade of staff sergeant (SSG)/E-6 in the U.S. Army Reserve (USAR) be restored.  

2.  The applicant states she was selected for promotion by a promotion board after she demonstrated the competence and ability to fulfill the duties in the higher grade.  She was accordingly promoted to SSG/E-6 on 1 December 2010.  She performed honorably in that grade until 8 August 2011 when her rank was taken.  An investigation was conducted by the unit into allegations that another unit member, a sergeant first class (SFC RH) was alleged to have altered physical fitness and weapons qualifications scores, including those of the applicant.  The chain of command's actions were in error, unjust, and illegal because:

* The Army regulation does not allow her battalion commander to abuse her
* She was denied due process
* The unit simply submitted a DA Form 4187 (Personnel Action) to the battalion commander who was a major (MAJ)
* The battalion commander signed the DA Form 4187 prior to the company commander making a recommendation
* The chain of command prematurely jumped into conclusions because of the relationship they had with SFC RH

3.  The applicant provides DA Form 4187, DA Form 4856 (Developmental Counseling Form), and Enlisted Record Brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 11 April 2003 and she held military occupational specialty (MOS) 92A (Equipment Records and Parts Specialist).  She served through multiple reenlistments and she was promoted to sergeant/
E-5 on 1 April 2006.  She was assigned to Headquarters and Headquarters Company, 40th Military Police (MP) Battalion, 15th MP Brigade, Fort Leavenworth, KS. 

2.  On 20 October 2010, by memorandum to the Commander, 40th MP Battalion, her immediate commander nominated her for promotion to SSG/E-6.  He indicated that she qualified expert on 19 October 2010 with her M-16 rifle and she scored 300 on the Army Physical Fitness Test (APFT) on 6 October 2010.

3. On 4 November 2010, she appeared before the 40th MP Brigade promotion board.  Her DA Form 3355 (Promotion Point Worksheet) shows she was awarded the maximum promotion points (50) for the APFT for scoring 300 on 1 October 2010 and the maximum promotion points (50) for scoring 40 out of 40 in her weapons qualification on 19 October 2010.  

4.  On 30 November 2010, Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS, published Orders 334-157 promoting her to SSG/E-6 with an effective date and date of rank of 1 December 2010.

5.  On 21 May 2011 an investigating officer (IO) was appointed by the battalion commander (he assumed command of the 40th MP Battalion on 8 November 2010) to conduct an Army Regulation 15-6 (Investigating Officers and Board of Officers) into allegations that:

* SSG P assisted with and forged APFT and/or other documents for other Soldiers' promotion packet
* SSG P withheld information or evidence regarding this situation when questioned
* Applicant assisted with or forged APFT and/or weapons qualification data for herself and SSG GG's promotion packet or allowed said actions to take place
* Applicant withheld information or evidence regarding this situation when questioned
* SSG GG assisted with or forged APFT and/or weapons qualification data for himself and the applicant's promotion packet or allowed said actions to take place

6.  The IO conducted an investigation between 31 May and 15 June 2011.  He found that:

* Another sergeant, SSG P, made a false official statement because he admitted to knowingly signing two blank APFT cards that could have been used inappropriately to assist with the promotion of the applicant and another sergeant (SSG GG)
* Insufficient evidence to prove SSG P withheld information or evidence regarding this situation when questioned
* The applicant knowingly certified her APFT and weapons qualification documents despite knowing they were false
* The applicant had knowledge of how two different APFT and weapons cards with different scores on each came to existence 
* SSG G knowingly certified her APFT and weapons qualification documents despite knowing they were false
* Both SSG G and the applicant needed the maximum APFT and weapons qualification points allowed in order to be promoted.

7.  The IO recommended SSG P be reprimanded and receive corrective training. He also recommended SSG GG and the applicant's promotions be revoked and that both receive nonjudicial punishment (NJP).  The appointing authority approved the IO's findings and recommendations.

8.  On 8 August 2011, the applicant's immediate commander counseled the applicant regarding his intent to initiate revocation of promotion action against her due to a finding of false APFT and weapons qualification in her promotion packet. He also informed her of his intent to recommend her for NJP action for making a false official statement.  The applicant indicated she agreed.

9.  Also on 8 August 2011, the applicant's immediate commander initiated a DA Form 4187 requesting the applicant's promotion to SSG be revoked.  He indicated the applicant was erroneously promoted to SSG/E-6.  The promotion orders were revoked at a later date.

10.  The applicant's battalion commander approved the action.  It is noted that when the immediate commander forwarded the action to the battalion commander, the date was printed as "2 August 2011" which gives the appearance that the battalion commander approved the action prior to the company commander initiating it. 

11.  On 27 October 2011, at a closed hearing, the applicant accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice for signing an official record known to her to be false and contained incorrect and exaggerated information.  Her punishment consisted of a reduction to specialist/E-4, a forfeiture of $1,162.00 pay per month for 2 months (suspended), and an oral reprimand.

12.  She appealed her punishment but did not submit additional matters.  Her appeal was denied by the brigade commander on 16 November 2011.

13.  An advisory opinion was obtained on 31 October 2011 in the processing of this case.  An official at the U.S. Army Human Resources Command, Fort Knox, KY, recommended restoration of the applicant's rank of SSG/E-6 with entitlement to back pay and allowances, effective 1 December 2011 and with a date of rank as 1 December 2010.  The official stated that many missing or invalid documents would substantiate a change to the outcome.  He added: 

* The applicant was not given due process as the command had no authority to reduce her
* The command did not conduct an administrative reduction board as required by Army Regulation 600-8-19 (Enlisted Promotions and Reductions) nor did they reduce her from SSG/E-6 to SGT/E-5 by NJP
* The immediate commander signed the DA Form 4187 on 8 August 2011 while the battalion commander approved it on 2 August 2011
* Assumption of command orders to show MAJ D as the battalion commander are not present
* A valid Army Regulation 15-6 is not present

14.  The applicant received a copy of the advisory opinion and concurred on 10 November 2011.

15.  Army Regulation 600-8-29 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.  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 personnel.  In determining whether a Soldier is entitled to de facto status, a factual evaluation must be made to determine whether a DA Form 4187 or promotion order has been issued; the Soldier occupied the higher grade in good faith; the Soldier actually discharged the functions of the higher grade; and there is no absolute statutory bar to his or her receipt of the pay at the higher grade.
	b.  Paragraph 3-28 states a Soldier promoted in error to the grade of SGT or SSG from a recommended list will, if otherwise qualified, be reinstated to the list at the same time the order is revoked and treated as if never promoted.  A Soldier removed from a list and later completely exonerated from the reason that caused the removal will be reinstated.  To be completely exonerated, the action that caused the initial removal must have been erroneous or should not have been imposed so that the Soldier is free of any wrong doings or accusation.  If however, the Soldier was eligible for promotion prior to reinstatement, the date of rank and effective date will be the date of original eligibility.

	c.  Paragraph 10-1 states a reduction board is required for Soldiers in the grade of CPL/SPC (when being reduced more than one grade) and for Soldiers in the grade of SGT through SGM (sergeant major) for any reduction for misconduct (civil conviction) under paragraph 10–3 (except under table 10–2) and for inefficiency under paragraph 10–5.  Board appearance, however, may be declined in writing, which will be considered as acceptance of the reduction board’s action.  Individuals in grade of CPL and below may be reduced without action by a board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SSG/E-6 on 1 December 2010.  Subsequent to this promotion, her chain of command conducted an investigation that substantiated the use of improper promotion points that led to her promotion.  Accordingly, the promotion authority ordered this promotion revoked.  Official orders were published to revoke her promotion.  Furthermore, she was punished under Article 15 of the UCMJ and she was ultimately reduced to E-4.

2.  Contrary to the applicant's contention and notwithstanding the advisory opinion provided by HRC:

	a.  The DA Form 4187 appears to have been possibly prepared by the servicing S-1 or personnel office on 2 August 2008; however, this does not mean the promotion authority approved it on that date.  But even if the promotion authority dated it on that date, this would have been a harmless error.

	b.  The issue here is not that of a reduction; rather a revocation of an erroneous promotion.  As such, the rules associated with a reduction board do not apply.  The applicant was not reduced from E-6 to E-5; her erroneous promotion was revoked.  As such, no due process was denied.   Commanders may conduct removal boards when a Soldier's substandard performance or inefficiency warrant.  The regulation does not contemplate a removal board for issues of erroneous/fraudulent documents in the promotion packet.  There are separate and distinct rules for erroneous promotion and reduction boards. 

	c.  The fact that the battalion commander holds the rank of MAJ is irrelevant.  He was the battalion commander as evidenced by his assumption of command orders, and as such, he had promotion authority by virtue of his position rather than his rank.

	d.  The revocation of the promotion was based on an investigation by a duly-appointed IO whose findings and recommendations were approved by the appointing authority. 

3.  The applicant did not suffer an injustice and there is no error with respect to her rank.  Therefore, there is no basis to correct her records in this case.

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)                                         AR20110017125





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ABCMR Record of Proceedings (cont)                                         AR20110017125



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