IN THE CASE OF:	  

		BOARD DATE:	    28 May 2013

		DOCKET NUMBER:  AR20120015207 


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 her rank to master sergeant (MSG)/pay grade E-8 with an effective date of 1 September 2010.

2.  The applicant states she was transferred to a promotion-eligible position and promoted to the rank/grade of MSG/E-8 on 1 September 2010.  Once the promotion authority discovered she was not qualified for the position, she was transferred to another position on 1 December 2010.  On 22 December 2010, the promotion authority indicated her promotion was in error and revoked the promotion.

3.  The applicant provides:

* a self-authored statement
* numerous electronic mails (email) 
* 99th Regional Support Command (RSC) MSG Promotion Selection List for August 2010
* Orders 10-239-00065
* Orders 10-239-00066
* Unit Manning Report, Part I, Position and Incumbent Data
* Orders 10-333-00028
* Enlisted Promotion/Consideration Declination Statement
* Orders 11-003-00093
* a two-page extract of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a member of the U.S. Army Reserve.  She was notified on  20 August 2010 that her standing on the Permanent Promotion Recommended List (PPRL) allowed her to receive both promotion and transfer orders                (if applicable) within the next 10 to 20 days provided she maintained her promotable status.  

2.  Orders 10-239-0065, dated 27 August 2010, issued by Headquarters, 99th RSC, Fort Dix, NJ, promoted her to MSG in military occupational specialty (MOS) 42A (Human Resources Specialist) with an effective date of 1 September 2010.

3.  Orders 10-239-0066, dated 27 August 2010, issued by Headquarters, 99th RSC, Fort Dix, NJ, released her from her current troop program unit (TPU) assignment and reassigned her to a TPU outside the command, with an effective date of 1 October 2010.

4.  On 23 November 2010, the applicant was notified by a member of the Enlisted Management Branch, 99th RSC, that based on her current qualifications and annotated mileage, she would be immediately reassigned to a first sergeant (1SG) position.

5.  Orders 10-333-00028, dated 29 November 2010, issued by Headquarters, 99th RSC, Fort Dix, NJ, released her from her current TPU assignment and reassigned her to a TPU outside the command, with an effective date of 1 December 2010.

6.  On 22 December 2010, the applicant was notified by a member of the Enlisted Management Branch, 99th RSC, that based on current selection and promotion policy procedures as outlined in Army Regulation 600-8-19 and U.S. Army Reserve Command (USARC) G1 promotion guidance, the transfer from her promoted unit (0301 IO BN) was an improper action and an error in the promotion process.  The applicant was required to do one of the following by    27 December 2010:

   a.  accept the initial promotion and transfer back to the 301st Information Operations Battalion, Fort Totten, NY; or

   b.  decline the initial promotion and be reduced to the rank of sergeant first class (SFC).

7.  If she chose to sign a declination statement her additional options were to:

   a.  remain in her current unit of assignment (1st Battalion, 391st Infantry Regiment, Fort Dix, NJ); or

   b.  transfer to a valid USAR TPU SFC position, incumbent upon acceptance by the identified unit.

8.  On 23 December 2010, she signed an Enlisted Promotion/Consideration Declination Statement.  By signing the declination she indicated she understood that by declining the promotion, she may be removed from the selection list.  She also understood that if removed from the selection list, she may be considered by the next Senior Enlisted Promotion Board provided she was otherwise eligible for promotion consideration.  The reason noted for her declination was travel distance.

9.  Orders 11-003-00093, dated 4 January 2011, issued by Headquarters, 99th RSC, Fort Dix, NJ, revoked her previous orders which promoted her to MSG.

10.  During the processing of this case, on 25 September 2011, an advisory opinion was obtained from Headquarters, USARC, Chief, Personnel Management Division.  The advisory official recommended disapproval of the applicant's request to restore her promotion to MSG for the following reasons:

   a.  In accordance with Army Regulation 600-8-19, paragraph 1-24, a Soldier may submit a memorandum of declination of promotion any time after being recommended for promotion.  If the Soldier has been promoted, the declination memorandum will be sent through command channels to the promotion authority not later than 60 days after the effective date of promotion.  Once the declination of promotion is received by the promotion authority, the declination is irrevocable.  The effective date will be the date the Soldier signed the declination of promotion.  There are no regulatory provisions to reinstate a promotion after it has been declined.

   b.  The applicant was promoted to MSG effective 1 September 2010; however, she did not meet the conditions for the promotion.  Therefore, the 99th RSC placed her into the next available vacancy.  She was given two options:  report to the second position, or decline the promotion.  The applicant signed a declination statement on 23 October 2010.  She later changed her mind and requested to withdraw her declination.  Per regulatory guidance, the 99th RSC had no option but to accept the original declination statement.

11.  On 4 October 2012, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  On 18 October 2012, the applicant indicated that she disagreed with the advisory opinion and responded to the advisory opinion with the following points of emphasis:

   a.  In accordance with Army Regulation 600-8-19, a declination of promotion would have to be received not later than 60 days from the effective date of promotion.  She was promoted on 1 September 2010.  She unwillingly signed her declination statement on 23 December 2010, well after the 60-day requirement.  In addition, the advisory opinion states she signed the declination on 23 October 2010, but this is clearly incorrect.

   b.  She was never given the options of reporting to a second position or declining the promotion.  On 23 November 2010, the applicant was notified by a member of the Enlisted Management Branch, 99th RSC, that based on her current qualifications and annotated mileage, she would be immediately reassigned to a first sergeant position.  As a Soldier, based on the transfer order dated 29 November 2010 with a report date of 1 December 2010, she reported as ordered.
 
   c.  USARC acknowledged she did not meet the criteria for the first position offered in their correspondence.  She also knew she did not meet the qualifications for the position.  The position had the following requirements:  a top secret clearance, Information Operations School Training, and duty in Londonderry, NH, which was 328 miles from her home of record and outside her promotion mileage election.  The 99th RSC Enlisted Management Branch and USARC both acknowledged she did not meet the conditions for promotion and placed her in the next available vacancy in which she remained for the next      15 months.

   d.  The advisory opinion states, "she later changed her mind and requested withdrawal of her declination."  The statement is untrue.  If she was requesting withdrawal of the declination statement signed 23 December 2010, 113 days after regulatory guidance, it clearly wasn't for the second position.  

   e.  Based on USARC correspondence acknowledging that she did not meet the conditions for the first position and therefore placed her into the next available vacancy as supported by Army Regulation 600-8-19, paragraph 5-44, she believes the actions of the 99th RSC were incorrect and not in accordance with regulation.

12.  Army Regulation 600-8-19 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.

	b.  Paragraph 5-38 states the convening authority will take the names of those Soldiers on the promotion recommended list and establish or integrate them on to the PPRL.

	c.  Paragraph 5-40 states the selection list is not a permanent selection list.  Each promotion selection list issued by a promotion board is a new report and 
will be integrated with the PPRL.  Soldiers who have not been promoted within 
2 years from the board appearance date will be automatically removed from the PPRL.  Removal from the PPRL does not preclude consideration by future boards.

	d.  Paragraph 5-41 states promotion will only be made against a current vacancy to which the Soldier is or will be assigned.  A promotion is not valid the promotion order will be revoked if the Soldier is not, or was not, in a promotable status on the effective date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her rank should be restored to MSG with an effective date of 1 September 2010 has been carefully examined.

2.  The applicant was notified on 20 August 2010 that her standing on the PPRL allowed her to receive both promotion and transfer orders provided she maintained her promotable status.  On 1 September 2010, she was promoted to the rank of MSG in MOS 42A and transferred to the promoted position.

3.  On 23 November 2010, she was notified by the 99th RSC, that based on her current qualifications and annotated mileage, she would be immediately reassigned to a 1SG position.

4.  After reporting to the 1SG position she was notified on 22 December 2010 that the transfer from her promoted unit was an improper transaction and she was required to either return to the position she was promoted in (and unqualified for) or decline the initial promotion to MSG.

5.  The applicant readily admits she did not meet the qualifications for the position she was promoted to.  On 23 December 2010, she ultimately declined promotion to the rank of MSG.  
6.  Regulation dictates instruments announcing erroneous promotions will be revoked.  It is evident from the applicant's own statement she was aware she was unqualified for the position she was erroneously promoted to.  

7.  In view of the foregoing, she is not entitled to the requested relief.

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 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)                                         AR20120015207





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ABCMR Record of Proceedings (cont)                                         AR20120015207



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