IN THE CASE OF:	  

		BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20110023158 


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 an exception to policy for promotion to master sergeant (MSG) and correction of all records to show her final rank/grade as MSG/E-8 rather than sergeant first class (SFC)/E-7.

2.  The applicant states:

* her E-8 promotion packet was submitted in January 2007 which resulted in her name being published on the permanent promotion recommended list (PPRL) in February 2007
* in April 2007, a promotion notice was sent to the Defense Finance and Accounting Service (DFAS) with a retroactive date of 1 January 2007
* she requested promotion orders from the orders publishing authority, but she never received promotion orders
* she exhausted all due diligence researching promotion orders from April 2007 until February 2010, to no avail
* she filed a complaint with the Inspector General (IG) after she was counseled concerning the MSG rank
* without proper research and investigation, the IG stated he could not confirm she was promoted to E-8 and a subsequent Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation would have to be conducted

*	the Army Regulation 15-6 investigation was inconclusive and her rank on her records and profile was reduced to SFC/E-7 along with reimbursement of MSG/E-8 pay and entitlements to the government
* no decision was made for the repayment amount or terms and this could be a substantial financial burden since she received E-8 pay and entitlements from April 2007 until December 2010
* the issue was repeatedly brought up to her chain of command for resolution
* no action or movement was taken until she was 3 months away from her planned retirement
* her rank/grade was reduced with inconclusive research and no formal documented report of findings or opportunities for rebuttal
* in June 2007, her common access card (CAC) denied her computer access as an SFC/E-7 and she had to get a new CAC in the rank/grade of MSG/E-8, the rank which was in the system
* the oversight in orders being produced for her promotion and the rank discrepancy caused her to miss other promotion opportunities from December 2007 through December 2010
* she received her 20-year letter in January 2008 with the rank/grade MSG/E-8 and worked in senior noncommissioned officer (NCO) leadership positions during the period April 2007 through December 2010

3.  The applicant provides:

* self-authored statements
* extracts from her personnel records
* extracts from her master military pay account (MMPA) and printouts extracted from MyPay
* DA Form 2823 (Sworn Statement) 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 30 November 1987.  Her last military occupational specialty (MOS) was 25W (Telecommunications Operations Chief).  She was promoted to SFC/E-7 on 1 August 2003.

2.  Orders A-08-620557, U.S. Army Human Resources Command (HRC), Alexandria, VA, dated 7 August 2006, ordered the applicant to active duty in support of Operation Enduring Freedom.

3.  On 19 January 2007, the applicant was recommended for promotion to MSG by the 99th Regional Readiness Command (RRC) Senior Enlisted Promotion Selection Board which convened during the period 16 through 20 January 2007.  

4.  Orders A-08-0620557A01, HRC, dated 4 April 2007, show the applicant's rank as SFC.

5.  A pay inquiry for the period 16 April 2007 to 30 April 2007 shows the applicant's rank as MSG/E-8.

6.  DA Forms 2166-8 (NCO Evaluation Report) for the following periods show her rank as MSG:

* 1 October 2006 through 30 September 2007
* 1 October 2007 through 31 January 2008
* 1 February 2008 through 31 January 2009

7.  On 8 November 2007, the applicant's position assignment was changed from position 0620 (OPFOR OC) to position 0520 (OC/T TM NCOIC) due to her promotion to MSG.

8.  On 3 January 2008, the applicant was notified of her eligibility for retired pay at age 60 (20-year letter).  The notification letter shows the applicant's rank as MSG.

9.  The applicant's DA Form 2166-8 for the period 1 February 2009 through 31 January 2010 shows her rank as SFC.

10.  On 20 November 2010, the applicant was honorably released from active duty.

11.  Orders 11-082-00019, Headquarters, 99th Regional Support Command, dated 23 March 2011, show the applicant was assigned to the Retired Reserve effective 2 April 2011 in the rank of SFC.

12.  The record is void and the applicant does not provide orders promoting her to MSG.

13.  An advisory opinion was obtained on 11 January 2011 from Headquarters, USAR Command (USARC), Fort Bragg, NC.  The USARC Chief, Personnel Management Division, recommended disapproval of the applicant's request for promotion to MSG for the following reasons:

	a.  In accordance with Army regulatory guidance, Soldiers recommended for promotion are placed on an order of merit list (PPRL) for a maximum of 2 years, unless promoted within 2 years.  Commands are required to report valid vacant positions to the regional list manager.  As vacancies are reported, the regional list managers identify the first Soldier on the PPRL meeting the requirements of the position to include MOS and Soldier's elected travel distance.  Records indicate the applicant was recommended for promotion to MSG by the 99th RRC February 2007 Senior Enlisted Promotion Board.  During her tenure on the PPRL, no vacancies were reported within her MOS and elected commuting distance.  Consequently, she was removed from the PPRL in February 2009.

	b.  A pay transaction was generated by her unit without the required valid promotion orders, which initiated pay and allowances as an MSG/E-8.  The unit conducted an Army Regulation 15-6 investigation which did not indicate any misconduct by the applicant; however, it did result in an adjustment to her personnel records to indicate her pay grade as E-7.  This action should have initiated a recoupment of all pay and allowances accrued at the higher grade of E-8; however, no recoupment action was ever processed.

	c.  The applicant was assigned to an E-8 position on the Unit Manning Report (UMR); however, that alone does not constitute a valid promotion.

	d.  The USAR recommends correction of the Soldier's MMPA to indicate her pay grade as E-7 and full recoupment of pay and allowances accrued at the higher grade from the Soldier; she is not entitled to these funds.

14.  A copy of the advisory opinion was provided to the applicant.  She submitted the following response, dated 1 February 2012:

	a.  Around April 2007, she was informed that she was advanced to E-8.  She immediately exercised due diligence by requesting orders.  Her request and concern on the potential of incurring a significant debt at the end of her active duty tour was elevated from the brigade S-1 up to the unit commander without success for more than 3 years.

	b.  She missed more than six promotion opportunities while waiting for promotion orders.  She is confident she would have been selected at one of the subsequent promotion boards given the opportunity and a level playing field.  In essence, she was robbed of her dignity and the right to compete for advancement.  She was directed to an E-8 troop program unit (TPU) position, assigned to an MSG/E-8 position on the UMR while mobilized, performed as an MSG/E-8, and was rated as an MSG/E-8 for 3 years.

	c.  There was negligence on behalf of her command during the 3 years.  She consistently raised the issue of promotion orders and was routinely brushed aside.  The situation turned hostile when the command started questioning her about personally participating in fraud and promoting herself.  She was counseled and offered "deals" that if she signed off on the counseling statements and other paperwork in 2010, the issue would go away.  The accusation was later determined to be unfounded.

	d.  The contributing factors to the issues in her case were deeply complicated due to her status as a Title 10, U.S. Code, Soldier and unit assignment as a Reservist.  Since mobilized Soldiers do not appear on the unit rolls, the MSG/E-8 position that she was moved to may not have appeared as a vacancy.  However, it should have been considered for a promotion opportunity.

   e.  The Army Regulation 15-6 investigation did not capture all aspects of the promotion issue.  From the very start it was structured as a research project into nefarious activity by a Soldier of high moral character.  The same zeal was not demonstrated in regard to the possibility of a processing error that may have occurred and/or a promotion checklist item accidentally omitted.  In view of the fact that the investigation was tailored with a certain end in mind, it was not conducted from the perspective of negligence or error on behalf of unit administrators or other personnel staff.

15.  Coordination with DFAS shows the applicant's present MMPA lists her pay grade as E-7 with an effective date of 1 August 2003 and no recoupment action in effect.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 5 prescribes policy for the promotion of USAR Soldiers assigned to TPU's, Army Reserve Elements, and multi-component units.  Paragraph 5-4 states an overstrength in NCO's in a pay grade will reduce or eliminate promotion possibility for NCO's in that grade and lower grades.  Paragraph 5-30 states that in no case will promotions be made to SFC and above for Soldiers in an overstrength status.  Transfers to and from an overstrength status will not be made for the purpose of increasing promotion opportunities.

17.  Army Regulation 600-8-19, chapter 4, provides guidance on centralized promotions to SFC, MSG, and sergeant major (SGM), and provides rules on referral of cases to a  Standby Advisory Board (STAB).  It states cases may be referred to a STAB upon determining that a material error existed in a Soldier’s OMPF when the file was reviewed by a promotion board.  STABs are convened to consider records of those:

* Soldiers whose records were not reviewed by a regular board
* Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board
* Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for promotion to MSG/E-8 as an exception to policy was carefully considered.

2.  Although the applicant was recommended for promotion to MSG/E-8 on a PPRL, no orders were published to effect the promotion.  The applicant, by her own admission, acknowledges that promotion orders were required for her rank/grade of MSG/E-8.  Further, it appears she was properly removed from the PPRL in February 2009 since no vacancies were reported within her MOS.  Therefore, there is neither an error nor an injustice and, as such, no reason to grant the applicant an exception to policy for promotion to the rank/grade of MSG/E-8.

3.  However, the applicant was improperly not considered for promotion to MSG/E-8 during the period February 2009 through November 2010.  Therefore, she missed promotion opportunities during fiscal year (FY) 2009 and 2010.  As a matter of equity, it would be appropriate for a STAB to consider her for promotion to MSG/E-8 for this period under the rules in effect for FY 2009 and FY 2010.

4.  An erroneous pay transaction by the applicant's command authorized her to receive pay as a MSG/E-8 for the period April 2007 through December 2010.  Through no fault of hers, she began receiving MSG/E-8 pay for this period.  She should not be subject to recoupment of this erroneous pay.  Therefore, the debt incurred as a result of the erroneous pay transaction should be waived or exempted from recoupment, that is, she should be granted de facto status.

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 of partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned by corrected by placing her records before a STAB to be considered for promotion to MSG/E-8 under the rules in effect for FY 2009 and FY 2010.

2.  If selected, her records be further corrected by showing she was promoted to MSG on her date of eligibility as determined by appropriate official, provided she was otherwise qualified and met all other prerequisites for promotion, and paying her any associated back pay and allowances.

3.  If not selected, the applicant be so notified and appropriate action be taken.

4.  Showing the applicant was granted de facto status and the debt incurred as a result of an erroneous pay transaction entry resulting in MSG/E-8 payment for the period April 2007 through 31 December 2009 is waived or exempted from recoupment.
 
5.  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 an exception to policy for promotion to MSG/E-8.



      _____________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)                                         AR20110023158



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ABCMR Record of Proceedings (cont)                                         AR20110023158



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