IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110020484 


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 of his de facto promotion to sergeant first class (SFC) with a date of rank (DOR) of 1 August 2009.  

2.  He states it was an injustice to have his de facto promotion to SFC rescinded after the U.S. Army Human Resources Command (HRC) had granted him the promotion.  He contends the reason for rescinding his promotion was beyond his control and the error occurred on the part of HRC not contacting a servicing Judge Advocate General (JAG) office and not him.    

3.  He also adds that Mr. JP of HRC, Enlisted Personnel Management Directorate stated in an email dated 12 July 2010 that the applicant should be entitled to de facto status because it was not his fault.  His current command found out about him receiving the de facto status for his promotion and they petitioned and retaliated against him for filing protected complaints to have the promotion overturned.  

4.  He contends that on 19 January 2011 he received an email with a memorandum attached which read that his de facto status had been withdrawn.  The reason given shows that in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-16c, the request for de facto status for [applicant's name] must be reviewed by the Soldier's servicing Staff Judge Advocate (SJA) office prior to being submitted to HRC – Fort Knox, KY for decision.

5.  The applicant submits that "because HRC did not contact my servicing SJA prior to being submitted for promotion is not my fault.”  Therefore, he should not be punished for their mistake.  He currently has an open Whistleblower case with the Department of Defense Inspector General (DODIG) for his command retaliating against him for filing complaints.  In addition, he also has filed complaints against his command with the Department of the Army IG and a representative in Congress.  

6.  He provides:

* his promotion orders
* two memoranda
* various emails

CONSIDERATION OF EVIDENCE:

1.  His record shows after serving 3 years, 6 months and 12 days in military occupational specialty (MOS) 76Y (Unit Supply Specialist) (later converted to MOS 92Y) in the Regular Army, the applicant transferred to the U.S. Army Reserve (USAR). His DA Form 2-1 (Personnel Qualification Record – Part II) shows his only MOS training was in MOS 76Y and his only duty assignments were in MOS 76Y.

2.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 35 (Record of Assignments) he transferred to the 447th Military Police Company, Columbus, OH on 29 February 1992 to serve in MOS 76Y.  

3.  His record shows that after a break in service from August 1996 to June 2001, he enlisted in the USAR on 25 June 2001 for a period of 6 years.  A DA Form 5261-5-R (Selected Reserve Incentive Program – USAR Prior Service Enlistment Bonus Addendum), which is a part of his 25 June 2001 enlistment contract, shows in Section III (Acknowledgement) he indicated he had attained a level of qualification commensurate with his grade and years of service, and which had been approved as a bonus MOS and correlated to the position vacancy for which he was enlisting.  He also indicated he was qualified in MOS 95B (Military Police) (later converted to MOS 31B) and that he had successfully served in MOS 95B on active duty.  

4.  His record contains an Enlisted Record Brief (ERB) - Active Guard Reserve (AGR).  This form shows in the Assignment History section that he served in MOS 31B from 24 August 2001 to 22 January 2003 with the U.S. Army Port Security Detachment, Vellejo, CA.

5.  His record shows he was ordered to active duty to serve in MOS 92Y in the AGR program on 22 February 2004. 

6.  He provided a copy of Orders 06-297-00012, dated 24 October 2006.  These orders show he was promoted to the rank of staff sergeant (SSG) in MOS 92Y on 1 November 2006.

7.  His ERB – AGR also shows he was later assigned to serve in MOS 31B on 
31 August 2009 with the 368th Military Police Company, Barrigada, Guam.  

8.  The applicant provided a copy of AHRC-PRO Orders B-07-905017, dated 
17 July 2009.  These orders show he was promoted to the rank of SFC with a DOR of 1 August 2009.  It further shows that MOS 31B was awarded as his primary MOS (PMOS) and 92Y was awarded as his secondary MOS (SMOS) effective 1 August 2009.  

9.  He also provided a memorandum from the Chief, Enlisted Board Support Branch, addressed to the Commander, HRC, subject:  De facto – [applicant's name], dated 12 July 2010.  This document shows that de facto status was approved for his promotion to SFC/E-7 in the MOS of 95B for the period 1 August 2009 through 12 July 2010.  This memorandum contains no further information.

10.  Copies of the email transmissions he provided shows conversations occurred between the Senior Enlisted Promotions Branch and the Enlisted Personnel Management Directorate (EPMD), HRC between 9 and 12 July 2010.  After further review of his military personnel record, a copy of the complete email string beginning 3 July 2010 further shows the applicant was asked for a copy of his completed certificate of training for MOS 31B.

	a.  EPMD wrote that the applicant should be entitled to de facto status.  The justification was due to a career manager publishing an MOS order to award MOS 31B without verifying the supporting documentation.  Error was not due to any fault of the applicant.   

	b.  The Senior Enlisted Promotions Branch wrote that the applicant was not qualified in MOS 31B when selected for promotion in that MOS.  Revocation orders and de facto status memorandum were published and it was noted that the applicant would automatically be considered for promotion by a Standby Advisory Board. 

11.  A memorandum, from the Chief, Enlisted Promotions Branch, dated 
19 January 2011, subject:  Withdraw of de facto status for [applicant] states the following:
"The de facto status, originally approved on 12 July 2010 for [applicant], by this office is hereby withdrawn.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions) paragraph 1-16c, the request for de facto status for [applicant] must be reviewed by the Soldier's servicing Staff Judge Advocate's office prior to being submitted to HRC- Fort Knox for decision. "

12.  A memorandum addressed to the Commander, 9th Mission Support Command, dated 15 March 2011, subject:  Legal Review of Request for General Officer Memorandum of Reprimand (GOMOR) for [applicant], 368th Military Police Company, Barrigada, Guam.  This document shows that Command Sergeant Major (CSM) H requested a GOMOR be given to the applicant based on the results of an investigation performed under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers).  The Deputy, SJA wrote:

	a.  Based on his review, some of the misconduct the investigating officer (IO) found was not supported by sufficient evidence.  Given the fact that the applicant had filed formal complaints at every opportunity, he wanted to ensure that any action the command took against him would withstand all scrutiny.

	b.  The applicant knowingly accepted award of MOS 31B for which he was not qualified and subsequently accepted promotion to SFC based on that MOS.  In 2002, the applicant was enrolled in the military police course, but failed to successfully complete the course.  

	c.  On 24 October 2006, he was promoted to the grade of staff sergeant and awarded a secondary MOS of 31B.  He was promoted to the grade of SFC in MOS 31B on 17 July 2009.  

	d.  When asked about the validity of his 31B MOS and promotion, he said he could not locate his course completion certificate and that he had enlisted in the USAR under the 31B MOS and attended the 31B course back in 2000. 

	e.  The applicant also made a false official statement on his security clearance application when he failed to reveal he had received nonjudicial punishment (NJP) on 22 March 2006 for failing to report for duty training.  

	f.  He also failed to timely pay his government travel card debt, resulting in the closure of the account.  After several past due amounts, he paid the account in full three months later.  

	g.  Each of the instances of misconduct is enough to warrant a reprimand on their own.  Taken together they demonstrate a pattern of misconduct, such that the applicant's integrity, honesty and ability to be a leader were called into question.   

13.  On 10 May 2011, the applicant was given a GOMOR which shows an investigation determined that he:

	a.  knowingly accepted award of the PMOS 31B and promotion to SFC in July 2009 for which he was not qualified;

	b.  made a false official statement on his June 2009 security clearance application by stating that he had not been subject to any disciplinary actions under the Uniform Code of Military Justice (UCMJ) for the prior 7 years, even though he received NJP by way of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) on 22 March 2006; and 

	c.  failed to timely pay his government travel card in 2009 and 2010.

14.  On 3 June 2011, the applicant submitted a rebuttal to the GOMOR.  In his rebuttal he stated:

	a.  The investigation performed under the provisions of Army Regulation 15-6 was flawed and legally and factually insufficient.  The entire investigation was racially motivated based on his previous Islamic name.  

	b.  The law required the IO to determine matters without reliance upon the opinions or recommendations of any other person.

	c.  Neither the IO or the appointing authority considered systematic breakdowns, failures in supervision, oversight leadership, program weakness, or accounted for errors dealing with the 31B MOS, government travel card, or the NJP.  

	d.  His attorney pointed out several flaws in the investigation, yet they were all ignored. 

	e.  The entire purpose of the investigation was racially motivated by his accounts.  His complaints of discrimination were ignored.  The IO asked for a copy of his birth certificate as proof of his identity which was a problem.  He repeatedly filed equal opportunity (EO), IG, and Congressional complaints into these matters.  

	f.  He was informed that because of the results of the investigation, he would just be receiving a relief for cause noncommissioned officer evaluation report (NCOER).  His attorney requested a copy of the final determination from the SJA office but was told there was no determination to be made. 

	g.  He also repeatedly asked for the status of the relief for cause NCOER but to no avail.  Additionally, he never performed his duties in MOS 31B as he was tasked to do personnel administration work in the S-1.  Therefore, in accordance with regulatory guidance, he was supposed to be rated on those specific duties and tasks.

	h.  In February 2011, he received a Bar to Reenlistment and he provided a statement in regard to the bar.  For Soldiers with more than 10 years of qualifying service for retired pay, the approval authority for a bar is the Commander, HRC – St. Louis.

	i.  He filed another IG and EO complaint in May 2011 and it was returned without action by the 9th MSC EO office.  According to the 9th MSC EO advisor, Colonel (COL) RH declined his request; therefore, the EO complaint was done.   

	j.  He did not accept award of MOS 31B and promotion to SFC with full knowledge and deliberation.  He noticed some time back in 2002 that his ERB had an entry of 31B as a SMOS.  Because he had a PMOS of 92Y, he did not give it a second thought.  He contended it was an oversight on his part.  

	k.  He had copies of his MOS orders as far back as 2005 where he was awarded MOS 31B by HRC, Fort Knox, KY.  HRC Promotions Branch accepted responsibility for their mistake and therefore awarded him de facto status in July 2010.  

	l.  He was not informed about his relief for cause NCOER until January 2011.  He asked his commander how could he receive a relief for cause NCOER based on the loss of MOS 31B if he had been awarded de facto status.  

	m.  He also provided a clarification as it pertained to the accusation of making a false statement on his June 2009 security clearance application.  He had no knowledge that the Article 15 would be approved and forwarded for filing in his Official Military Personnel File (OMPF).  His commander only informed him that he would be considering him for NJP, but never indicated he would receive it. 

	n.  In reference to failing to pay his government travel card in 2009 and 2010 which ultimately resulted in a past due amount and closure of that account, he submitted that it was no fault of his.  His supervisors failed to give him the proper assistance he needed.  The error occurred during his permanent change of station from Hawaii to Guam in which responsibility for the card was not transferred from his losing command to his gaining command in a timely manner.  As a result, he was listed as having delinquent payments and his account was eventually closed.  

	o.  He also submitted several pages of his discontentment with his command climate and the fact he had filed EO complaints under the Whistleblower Protection Act of 2009 for the many injustices done to him. 

15.  A review of his military personnel record shows he applied to the Department of the Army Suitability Evaluation Board (DASEB) in August 2011 to appeal the withdrawal of his de facto status.  The DASEB returned his request without action and noted the appeal did not fall within the purview of their board.   

16.  On 20 August 2011, the applicant's chain of command notified him that they were initiating action to separate him under the provisions of chapter 14, section III, paragraph 14-12 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for serious misconduct.  

17.  After consulting with counsel and being advised of his rights, the applicant requested a personal appearance before an administrative separation board.

18.  On 3 January 2012, an administrative separation board convened to hear the case of the involuntary separation of the applicant.  The board found, by a preponderance of the evidence, that the following allegations were supported by the evidence:

	a.  Finding 1 - He knowingly accepted the primary MOS of 31B and promotion to SFC in July 2009, for which he was not qualified.

	b.  Finding 2 - He made a false statement on his June 2009 security clearance application by stating that he had not been subject to any disciplinary actions under the UCMJ for the seven prior years.

	c.  Finding 3 - He made a false statement under oath in which he did not list a 2002 felony conviction on his AGR application. 

	d.  Finding 4 - The applicant failed to pay his government travel card in 2009 and 2010, which resulted in past due amounts and closure of the account.

	e.  Finding 5 - The aforementioned findings concerning the applicant did warrant his separation from military service.
	f.  Finding 6 - Other findings deemed to be appropriate by the board were that the 9th MSC and the entire chain of command of the 368th Military Police Company and 303rd Military Police Brigade failed the applicant.  Also noted was the failure of the HRC system and that the Army Regulation 15-6 investigation process needs improvement.

19.  The board recommended the applicant's discharge from the USAR because of serious misconduct and he be given a general discharge under honorable conditions.

20.  His records contain HRC Orders B-02-201115, dated 14 February 2012.  This order shows he was promoted to the grade of SFC in MOS 92Y on 
1 March 2012.  

21.  On 18 April 2012, the General Court-Martial Convening Authority (GCMCA) approved board findings 1 through 5 and disapproved board finding 6.  The GCMCA stated that finding 6 seemed to be a general opinion statement without a factual explanation and was unsupported by substantial evidence.  She also approved the board's recommendation for separation. 

22.  On 15 April 2012, the Deputy Staff Judge Advocate reviewed the findings of the board and noted that the applicant had been afforded all due process and his rights were protected.  He had availed himself of every element of the complaint process to address and redress his grievances.  He recommended the GCMCA approve the separation action.  

23.  The applicant's record contains HRC-E550 Orders D-01-290009, dated        7 May 2012.  These orders show he will be discharged from the USAR/AGR on 16 July 2012 and he will be given a general, under honorable conditions discharge.

24.  Army Regulation 611-201 (Military Occupational Classification and Structure), in effect at the time of the applicant’s enlistment in the USAR, stated award of MOS 95B required successful completion of the MOS-producing school.

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

26.  De facto status may be granted by the promotion authority or higher commander after legal review by the servicing SJA'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.  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.

DISCUSSION AND CONCLUSIONS:

1.  Award of MOS 95B/31B requires successful completion of the MOS-producing school.  There is no evidence of record to show and he provided no evidence to show he completed the course.

2.  The applicant’s DA Form 2-1 does not show he completed MOS 95B training or that he worked in MOS 95B.  His DA Form 2-1 shows that when he transferred to the USAR in February 1992 he worked in MOS 76Y.  Yet, when he enlisted in the USAR on 25 June 2001, he stated that he was qualified in MOS 95B and had successfully served in MOS 95B on active duty.

3.  Available evidence indicates the applicant was erroneously advanced to the rank of SFC/E-7 in MOS 31B on 1 August 2009.  As a result, HRC granted him de facto status for the period 1 August 2009 through 12 July 2010.  

4.  However, a subsequent Army Regulation 15-6 investigation found that the applicant knowingly accepted award of MOS 31B for which he as not qualified and accepted promotion to SFC based on that MOS. As a result of the investigation his de facto status was revoked and he was given a GOMOR.  

5.  Regulatory guidance states that certain factors must be taken into consideration when granting de facto status.  One of the factors is that the Soldier must have occupied the higher grade in good faith.

6.  The applicant has provided insufficient evidence to show that he did not knowingly erroneously state, when he enlisted in the USAR on 25 June 2001, that he was qualified in MOS 95B and had successfully served in that MOS.  He has also provided insufficient evidence to show that he did not knowingly accept promotion in MOS 31B fully aware that he still was not qualified to hold that MOS.

7.  In spite of the applicant's contentions, he has not provided sufficient evidence to show that the investigation performed under the provisions of Army Regulation 15-6 or that the GOMOR he was given for knowingly accepting promotion in an MOS for which he was not qualified were unjust.  As such, there is no evidence to support that an injustice occurred when his de facto status for promotion to SFC/E-7 the period 1 August 2009 through 12 July 2010 was withdrawn.  

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110020484





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ABCMR Record of Proceedings (cont)                                         AR20110020484



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