IN THE CASE OF:	  

		BOARD DATE:	    15 August 2013

		DOCKET NUMBER:  AR20120015304 


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 his promotion to sergeant major (SGM) be restored with back pay.

2.  The applicant states:

* he was promoted to SGM from the 99th Regional Readiness Command (RRC) 2006 Permanent Promotion Recommended List (PPRL) to a valid position, but later he was told it was a bogus position
* his unit never gave him a reason

3.  The applicant provides:

* several service personnel records documents
* Orders 08-217-00022, issued by Headquarters, 99th RRC, dated
4 August 2008

CONSIDERATION OF EVIDENCE:

1.  Having prior active duty service in the Regular Army, on 6 October 1983, the applicant enlisted in the U.S. Army Reserve (USAR).  He was promoted to master sergeant on 1 December 1998.


2.  Orders 08-217-00022 promoted him to SGM effective 1 August 2008.  These orders indicate he was promoted off the 99th RRC August 2006 PPRL.  On an unknown date, these promotion orders were revoked.

3.  He provides orders, dated 4 August 2008 and 6 August 2008 that show he was reassigned to a Troop Program Unit outside his command effective 
6 September 2008.  These orders were revoked on 7 November 2008.

4.  In September 2008, he submitted a request to perform 90 days of Active Duty for Operational Support (ADOS).  He was ordered to active duty for operational support on 26 September 2008.

5.  He provides an email, dated 7 November 2008, from the 99th RRC that states:

* this revocation action is "NOT" in De-Facto status
* payments received at the higher grade are to be recouped
* transfer back to originating unit to occur no later than 30 days after release from active duty
* Regional Level Application Software (RLAS) is to be updated to reflect previous rank and date of rank of MSG-DOR: 1998/12/01

6.  Records show he completed the Sergeants Major Course on 27 April 2010.

7.  In June 2010, he filed an Inspector General (IG) complaint requesting assistance in restoring his promotion to SGM and the pay that was taken from him based on the revocation of the promotion order.  The Department of the Army IG determined:

* the applicant was promoted into an erroneous vacancy within the
75th Battle Command Training Division (BCTD)
* upon identification of the error the 99th RRC revoked the assignment and promotion order
* it may be possible for him to recoup the money that was taken based on the erroneous promotion

8.  On 14 March 2011, per his voluntary request, he was assigned to the USAR Control Group (Reinforcement).

9.  In the processing of this case, on 28 June 2013 an advisory opinion was obtained from the Chief, Personnel Management Division, USAR Command, Fort 


Bragg, NC.  The advisory official recommends disapproval of the applicant's request and retroactive pay for the following reasons:

	a.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Soldiers recommended for promotion are integrated onto an order of merit list called a PPRL.  Then, as vacant positions are reported, the supporting Regional Support Command (RSC) will identify the first Soldier on the PPRL who meets the reported requirements of these positions within their military occupational specialty (MOS) and elected travel distance.  Soldiers identified for promotion from the PPRL must report for duty to the position to which promoted; comply with reassignment orders, if issued; and serve at least 12 months in the duty position before voluntary reassignment.  Promotion and reassignment orders will be revoked for a Soldier who fails to comply with the reassignment order, if issued, and serve at least 12 months in the duty position before voluntary reassignment.

   b.  Instruments announcing erroneous promotions will be revoked.  When a Solder has been erroneously promoted and has received pay at the higher grade, a determination of de facto status may be made to allow the Soldier to keep any pay and allowances received at the higher grade.  In determining whether a Soldier is entitled to de facto status, a factual evaluation must be made to determine whether the Soldier actually discharged the functions of the higher grade.  Soldiers who have not been promoted within 2 years from the board appearance date will be automatically removed from the PPRL; however, removal from the PPRL does not preclude consideration by future boards. 

	c.  Records indicate the applicant was recommended for promotion to SGM by the August 2006 Senior Enlisted Promotion Board and integrated onto the PPRL managed by the 99th RSC.  During his time on the PPRL, no vacancies were reported within his MOS and elected travel distance; therefore, he should have been administratively removed from the PPRL in July 2008 as indicated above.

   d.  On 4 August 2008, orders promoting and reassigning him into an invalid position were issued.  The administrative decision leading to the promotion and reassignment of the applicant were not consistent with the above outlined procedures; therefore, the 99th RSC revoked the orders as soon as the erroneous promotion was identified.  After careful consideration, a determination of de facto status was not authorized as the applicant had established his intent to pursue voluntary ADOS rather than report to the position, discharge the functions of the higher grade, and fulfill his 12-month obligation as required.  


	e.  Finally, prior to his voluntary reassignment to the Individual Ready Reserve (IRR) on 14 March 2011, he was eligible to be considered by 9 separate promotion boards, but he failed to submit the required promotion packet.  The facts indicate there is no evidence of an injustice to the applicant or damage to his career and add credence to the validity of the revocation of promotion order; therefore, no relief is warranted.

10.  A copy of the advisory opinion was furnished to the applicant to allow him the opportunity to submit comments or a rebuttal.  On 27 July 2013, he responded.  In summary, he stated:

	a.  he would like to respond to the advisory opinion stating there was no injustice in revoking his promotion to SGM in 2008.  He has been told all along that his promotion in 2008 was a bogus promotion and now since they erred they are trying to use a time limit as a defense.

	b.  the opinion states he was placed on the August 2006 PPRL managed by the 99th RSC and he should have been removed in July 2008.  He does not have those records nor could he find them online, but it would stand to reason that if his promotion orders were dated 4 August 2008 with an effective date of
1 August 2008 then that point is moot.  He spoke with the 99th RSC several times before in reference to the promotion board and he was told where he stood on the list.  He was told there would be another board soon and he expressed his concern about the 2-year time limit.  He wanted to know so that if he was not getting promoted on this board then he would have to submit a new packet.  He was well aware of the time limit.

	c.  the opinion also states he was assigned to an invalid position which when he first got promoted and looked at his assignment position it stated operations SGM.  When he did get to speak with a command sergeant major at the 
75th Division he was told that position was filled and he would be filling an observer position.  If this is the case then the 99th RSC erred again and why should he be penalized for their error.  He spoke with a master sergeant after getting revocation orders and he stated that the position was valid.

	d.  if his promotion orders had not been revoked he would not have had to be considered by 9 separate promotion boards or switched to the IRR.

	e.  he requests the Board grant full relief for this injustice.

11.  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 he/she 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 5-4 defines cumulative vacancy policies.  An overstrength in noncommissioned officers (NCOs) in a pay grade will reduce or eliminate promotion possibility for NCOs in that grade and lower grades.

	c.  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.

	d.  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.

	e.  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 and 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.  Evidence shows the applicant was recommended for promotion to SGM by the August 2006 promotion board and he was integrated onto the PPRL.  It appears he was promoted to SGM in an invalid vacancy position in August 2008.  The governing regulation states that Soldiers identified for promotion from the PPRL must report for duty to the position to which promoted, comply with a reassignment order, and serve at least 12 months in the duty position before voluntary reassignment.  In September 2008, he submitted a voluntary request to perform 90 days of ADOS rather than report to the position, discharge the functions of the higher grade, and fulfill his 12-month obligation as required.
 
2.  It appears his promotion orders and reassignment orders were revoked in November 2008 when the erroneous promotion was identified.  The governing regulation states promotion and reassignment orders will be revoked for a Solder who fails to comply with the reassignment order and serve 12 months in the duty position before voluntary reassignment.
3.  The applicant has provided insufficient evidence/argument to show why relief would be equitable.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120015304



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ABCMR Record of Proceedings (cont)                                         AR20120015304



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