BOARD DATE:	23 October 2012

		DOCKET NUMBER:  AR20120005901 


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:

* restoration of his rank to sergeant major (SGM)/E-9 effective 1 May 2010
* cessation of recoupment of SGM/E-9 pay
* return of all monies collected due to the recoupment action

2.  The applicant states:

	a.  At the time of his promotion to pay grade E-9 no positions were available and he was not promoted against a valid position.  His promotion orders state that he would have 12 months following completion of his active duty for operational support (ADOS) tour to fill a valid position.  His promotion was revoked in December 2010 because he was not encumbering a valid position.  This is less than 12 months after completion of his ADOS tour (which was extended twice).  Additionally, his ADOS tour ended 3 January 2012 and he requests restoration of his promotion so he may transfer from the Individual Ready Reserve (IRR) to a valid troop program unit (TPU) E-9 position.

	b.  While mobilized in support of the U.S. Army Reserve (USAR) Post-Deployment Health Reassessment (PDHRA) Program, his unit inactivated and he accepted a transfer to the IRR.  Prior to accepting the transfer, the USAR G-1 staff confirmed transfer to the IRR would not negatively impact his promotion to SGM.  He was told he was "good to go" and there would be no negative consequences.

	c.  The 88th Regional Support Command (RSC) Inspector General (IG) informed him that his promotion had been revoked because he transferred to the IRR in October 2010 and he was not in a valid TPU position.  His promotion order states that following the conclusion of his ADOS tour he would have 12 months to be assigned to an appropriate position.  If not assigned to an appropriate position within 12 months he would be subject to either voluntary administrative reduction in order to fill a vacant position or transfer to the IRR in the grade in which he was promoted.

	d.  His decision to transfer to the IRR was based on the fact there were no vacant positions available and the USAR G-1 informed him that his promotion would not be affected.

	e.  Since a vacant position was not available he had to choose between:

		(1)  ending his mobilization and transferring to the IRR where he would be a fully inactive Soldier without a position, thereby revoking his promotion; or

		(2)  transferring as directed to the IRR and continuing his ADOS tour with no negative consequences to his promotion as advised by USAR G-1.  Although he would still have been in the IRR, he would have been able to continue to support the mental health needs of his fellow USAR Soldiers and their families while waiting for a TPU vacancy to become available.

	f.  The IG findings state his promotion was revoked in December 2010.  The revocation order was not generated until 3 January 2012, which was 13 months after the fact.  As a result of this delayed revocation order his pay is now being garnished to recoup pay he received as an E-9 and he now faces a large financial hardship totaling over $8,000.

	g.  In December 2011 while again looking for vacancies, he was informed telephonically that his promotion was being revoked.

	h.  While the revocation of his promotion is not related to duty performance, it should be noted that in the absence of a vacant position following two involuntary mobilizations, he volunteered for two more missions which were both integral to the health and welfare of our Soldiers.  While serving as the Senior PDHRA Coordinator for the 88th RSC, he routinely worked 60-70 hours per week and logged more than 20 temporary duty missions per year.

	i.  He provided direct behavior health support to more than 750 individuals.  He was awarded the Meritorious Service Medal in September 2011 and he has completed 100 percent of the U.S. Army Sergeants Major Course curriculum and will graduate with Class 37.

3.  The applicant provides:

* SGM promotion orders
* email exchange between him and the USAR G-1 Enlisted Management Branch
* letter from the Office of the IG, 88th RSC
* his leave and earnings statement showing indebtedness
* DD Form 2789 (Waiver/Remission of Indebtedness Application)
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report) for 31 January through 31 December 2010
* DA Form 2166-8 for 1 January through 31 December 2011
* Meritorious Service Medal for the period 5 February 2006 to 1 September 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career USAR NCO, is currently a master sergeant (MSG)/E-8 in the IRR.

2.  On 13 August 2009, while serving as an MSG in a USAR unit, he was ordered to ADOS for a period of 1 year with a reporting date of 2 October 2009.

3.  Headquarters, 81st RSC, Fort Jackson, SC, Orders 10-116-00040, dated 26 April 2010, show he was promoted to SGM/E-9 effective 1 May 2010.  His promotion orders state in the additional instructions:  "Upon completion of the ADOS tour Title 10, U.S. Code, section 12301, you will have 12 months to be assigned, either voluntarily or involuntarily, to an appropriate position in your grade and in accordance with established regulatory guidance.  If not assigned to such a position within 12 months, you are subject to either voluntary administrative reduction in order to fill vacant positions in the lower grade or transfer in the promoted grade to the IRR."

4.  Headquarters, 81st RSC, Orders 10-208-00063, dated 27 July 2010, show he was reassigned to the USAR Control Group (Reinforcement) (IRR) effective 1 October 2010.  The reason listed is "mandatory."

5.  Headquarters, 81st RSC, Orders 12-006-00030, dated 6 January 2012, show his promotion to SGM was revoked.

6.  The applicant provides a letter from the 88th RSC IG, dated 4 January 2012, which states:

	a.  "Our inquiry determined that your promotion to SGM was revoked because you failed to meet the 2-year service obligation.  The reference for this obligation can be found in Army Regulation 600-8-19, chapter 5, paragraph 5-42a, A Soldier who accepts a promotion will incur a 2-year TPU service remaining requirement from the effective date of promotion....Because you were on active duty at the time of promotion you were not promoted into a SGM position.  Your promotion orders state at the conclusion of your active duty orders, 1 October 2010, you would have 12 months to be assigned into a SGM9 position.  On 1 October 2010, you voluntarily transferred to the IRR to continue on an ADOS order.  Since you did not transfer to a TPU position and remain as a TPU Soldier your promotion was revoked on 1 December 2010."

	b.  "The information you initially received via email was inaccurate concerning your promotion orders not being revoked.  The information you later received telephonically by USARC Promotions Branch regarding the 2-year obligation as a result of your promotion to SGM was correct and is in accordance with Army Regulation 600-8-19, [paragraph] 5-42a."

7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states in paragraph 5-42a, "A Soldier who accepts a promotion will incur a 2-year TPU service remaining requirement from the effective date of promotion.  The Soldier must report for duty in the position to which promoted, comply with a reassignment order, if issued, and serve at least 12 months in the duty position before voluntary reassignment.  An exception to this policy occurs when the Soldier has a change of residence or civilian employment, or incurs an extreme hardship requiring such reassignment.  This policy does not preclude reassignment for the convenience of the government or the good of the command, to the Ready, Standby, or Retired Reserve, including Individual Mobilization Augmentee or Active Guard Reserve status."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rank to SGM/E-9 should be restored effective 1 May 2010, the action being taken to recoup the SGM/E-9 pay should be stopped, and all monies collected should be returned to him.

2.  The orders promoting the applicant to SGM/E-9 clearly stated that if he were to be transferred to the IRR it would be in the higher grade.  His IRR reassignment orders show the action was "mandatory."  Prior to reassignment to the IRR he was assured by the USAR G-1 staff that the promotion would not be affected.

3.  The governing regulation requires that a Soldier who accepts promotion to SGM incurs a 2-year TPU service remaining requirement from the effective date of promotion.  The applicant was promoted to SGM/E-9 effective 1 May 2010 and he was reassigned to the IRR effective 1 October 2010.  Although he did not serve 2 years in his TPU after promotion, his reassignment to the IRR was shown as "mandatory."  It appears that he was unjustly deprived of the allotted 12-month period in which to locate a suitable SGM/E-9 position.  He should be granted an exception to the 2-year TPU service requirement.

4.  The Defense Finance and Accounting Service (DFAS) should audit the applicant's finance records and provide him all monies that were recouped due to revocation of his promotion.

5.  In view of the actions taken by the applicant, the available evidence, and as a matter of equity, it would be appropriate to grant his request.

BOARD VOTE:

___x__  __x______  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.  restoring his rank to SGM/E-9 by revoking Headquarters, 81st RSC, Orders 12-006-00030 and


	b.  directing DFAS to audit the applicant's finance records and provide him any pay and allowances due as a result of invalidation of the recoupment action.



      ___________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)                                         AR20100026207



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ABCMR Record of Proceedings (cont)                                         AR20120005901



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