IN THE CASE OF:	  

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20120022994 


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, in effect, his date of rank (DOR) to sergeant first class (SFC)/E-7 be restored to 1 July 2010 or, in the alternative, placement in a de facto status for his erroneous promotion to sergeant first class (SFC)/E-7, effective 1 July 2010.

2.  The applicant states, in effect, at the time he was promoted to SFC he was not aware that his promotion was erroneous; therefore, he accepted his promotion in good faith and a promotion order was issued.  He served in an SFC position and he was paid as an SFC from 1 July 2010 until his promotion was revoked/rescinded by orders dated 17 October 2011.

3.  The applicant provides:

* Self-authored statement, dated 5 December 2012
* Orders 06-199-00015, dated 18 July 2006
* Orders 10-195-00018, dated 14 July 2010
* Orders 11-290-00029, dated 17 October 2011
* Orders B-02-300776, dated 13 February 2013
* DA Form 4187-1-R (Personnel Action Form Addendum), dated 
24 November 2008
* Orders 021881, dated 2 December 2010
* Orders 10-354-00018, dated 20 December 2010
* 
Orders Number 355-2205, dated 21 December 2011
* Orders Number R-01-280356, dated 13 January 2012
* Five DA Forms 1059 (Service School Academic Evaluation Report (AER)), dated 25 August 2007, 25 April 2009, 24 September 2010, 1 July 2011, and 18 December 2011
* Three DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), for the periods 21 July 2009 through 20 July 2010,
21 July 2010 through 20 July 2011, and 21 July 2011 through 
22 January 2012
* Certificate for award of the German Army Marksmanship Badge (Gold), dated 26 May 2011
* DA Form 638 (Recommendation for Award) and certificate for award of the Army Commendation Medal, dated 31 May 2011
* Orders Number 221-37, dated 9 August 2011
* Diploma, Pathfinder Course, dated 19 August 2011
* Certificate for award of the Expert Infantryman Badge, dated 28 October 2011
* Permanent Orders (PO) Number 301-06, dated 31 October 2011
* DA Form 638, dated 14 November 2011
* Memorandum, Orders Awarding the Order of Saint Maurice Recipient – Legionnaire-03392, dated 21 November 2011
* DA Form 638 and certificate for award of the Army Achievement Medal, dated 7 April 2012
* Certificate of Military Occupational Specialty (MOS) Qualification, 11B (Infantryman), dated 25 August 2007
* Associates in Applied Science Degree, dated 9 May 2008
* Certificate of Registration, Registered Nurse, dated 8 August 2008
* Certificate of Training, Drill Sergeant School, dated 25 April 2009
* Memorandum of Completion and Certificate of Training, Tactical Combatives Course, dated 15 April 2011
* Certificate of Training, U.S. Army Battle Staff NCO Course, dated 1 July 2011
* Interactive Web System (IWS) Transactions screen printout, dated 
15 March 2013
* Chronological Statement of Retirement Points, dated 4 April 2013
* IWS Total Army Personnel Data Base (TAPDB)-Reserve (R) screen 
printout, dated 4 April 2013
* Five pages of various email traffic

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 2 September 1998.  He holds MOS 11B and 68K (Medical Laboratory Specialist) and currently serves as an SFC.

2.  Orders 06-199-00015, issued by Headquarters, 332nd Medical Brigade, Nashville, TN, dated 18 July 2006, promoted him to staff sergeant (SSG)/E-6 with an effective date and date of rank (DOR) of 15 July 2006.

3.  Orders 10-195-00018, issued by Headquarters, 81st Regional Support Command (RSC), Fort Jackson, SC, dated 14 July 2010, promoted him to SFC with an effective date and DOR of 1 July 2010.

4.  His record contains an NCOER for the rating period 21 July 2010 through 
20 July 2011 that shows:

* his rank as SFC
* he was serving as the Operations NCO in charge
* he held the Duty MOS 11B42S
* he was marked as among the best by his Rater
* he was marked as successful (1) and superior (1) by his Senior Rater
* his senior rater stated he was "in the top 5% of all NCOs that I have worked with…"

5.  His record contains a series of DA Forms 1059 that show he attended:

* the 11B course from 11 August 2007 to 25 August 2007 and met course standards
* the drill sergeant course from 1 March 2009 to 25 April 2009 and exceeded course standards
* the basic NCO course (BNCOC) from 13 September 2010 to
24 September 2010 and exceeded course standards
* the battle staff NCO course from 31 May 2011 to 1 July 2011 and met course standards 
* infantryman advanced leader course from 3 December 2011 to 
18 December 2011 and exceeded course standards

6.  Orders 11-290-00029, issued by Headquarters, 81st RSC, Fort Jackson, dated 17 October 2011, revoked/rescinded Orders 10-195-00018, his promotion to SFC, dated 14 July 2010.

7.  His record indicates he entered active duty in an Active Guard Reserve  (AGR) status on or around 1 September 2011.

8.  The applicant provided an email from Master Sergeant (MSG) JDD, U.S. Army Reserve Command (USARC) G1, dated 29 November 2012.  MSG JDD stated:

	a.  He was familiar with the applicant’s case.  In 2011, he received an inquiry from SFC Robinson regarding the applicant’s NCO Education Systems (NCOES) waiver.  He answered it as a general inquiry.  It appears his last sentence led to the initiation of revocation orders, which was in compliance with regulatory guidance.

	b.  The applicant’s NCOES waiver in 2008 allowed him promotion board consideration without the proper NCOES.  At the time, policy guidance allowed promotion off the recommended lists for Soldiers who were granted a waiver, but only if the Soldier was currently deployed.  If the Soldier was not currently deployed, as in the applicant’s case, they were required to complete all phases of NCOES prior to the promotion effective date.  The applicant was subsequently promoted to SFC on 1 July 2010; however, he was not currently deployed nor had he completed the required NCOES until 18 December 2011.

	c.  Even though the revocation was in compliance with regulatory guidance, this erroneous promotion was a result of inaccurate information during the slating process and appears to be through no fault of the Soldier.

9.  Orders B-02-300776, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 13 February 2013, promoted him to SFC effective and with a DOR of 1 May 2012.

10.  During the processing of this case an advisory opinion was obtained from the Personnel Management Division, Headquarters, USARC, Fort Bragg, NC, dated 7 November 2013.  The advisory official recommended disapproval of the applicant’s request and stated:

	a.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Soldiers otherwise eligible for promotion board consideration but lacking the prerequisite level of NCOES as a direct result of operational deployment conflicts or inability of the Army to schedule the courses may be granted a waiver of the NCOES requirement.  Soldiers recommended for promotion to SFC, whose eligibility resulted from a waiver of the requisite NCOES, will have their promotion held in abeyance until the requisite course is 

completed.  The promotion 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 Permanent Promotion Recommendation List (PPRL).  The PPRL is permanent and must be exhausted by board appearance date, MOS, and geographical location.  Soldiers who have not been promoted within 2 years from the board appearance date will automatically be removed from the PPRL.  Removal from the PPRL does not preclude consideration by future boards.  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.  Records indicate the applicant, then a SSG, was recommended for promotion to SFC on 26 February 2009 and he was integrated onto the PPRL managed by the 81st RSC with a waiver of NCOES.  He was promoted to SFC on 14 July 2010; however, since he did not complete his required NCOES until 18 December 2011 his promotion was revoked.  The opportunity to attend NCOES existed as evidenced by his attendance records at elective courses; therefore, de facto status was not granted and action was taken to initiate recoupment of pay and allowances.

11.  On 23 November 2013, the applicant responded to the advisory opinion.  He stated the USARC’s advisory opinion was unjust and immoral.  It is unfair for USARC to force his family to incur a financial hardship for a mistake made at their level.  He was initially told he would not incur a debt as a result of the erroneous promotion and he was under the impression he would be granted de facto status since the situation was not his fault.

12.  Army Regulation 600-8-19:

	a.  Paragraph 1–27 provides for the NCOES requirements for promotion and states that a Soldier must be an Advanced Leaders Course (ALC) graduate for consideration eligibility to SFC.  Active Army, ARNG, and USAR AGR Soldiers otherwise eligible for consideration but lacking the prerequisite level of NCOES as a direct result of operational deployment conflicts, or inability of the Army to schedule the course, will be granted a waiver of the NCOES requirement for USAR Soldiers by the USARC, 7th Civil Support Command, 9th MSC for TPU Soldiers.  Soldiers selected for promotion to SFC whose eligibility resulted from a waiver of the requisite NCOES, will have their promotion held in abeyance until the requisite course is completed.  Deployed Soldiers assigned or attached to a unit participating in Operations Enduring Freedom or Iraqi Freedom will be 

conditionally promoted, provided otherwise eligible, to SFC.  RC Soldiers will be promoted upon identification of a valid position vacancy in the grade of SFC.  The condition of promoting RC Soldiers to SFC requires Soldiers to complete the appropriate level of NCOES within 2 years upon redeployment from the area of operations.  In all cases, for all components, requests for exceptions to the established time frames must be submitted, in writing, to the Deputy Chief of Staff (DCS), G–1 for approval.  Soldiers who fail to complete the required level of NCOES within the prescribed time frame will be reduced according to their former rank.

	b.  Paragraph 1-16 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel to include active Army, ARNG, and USAR.  Paragraph 1-16 contains guidance on erroneous promotions and de facto status.  It states, in pertinent part, that when an erroneous promotion is detected, service in the higher grade may have been in de facto status when the Soldier was not at fault but the promotion was erroneously accomplished.  Even though the promotion order is revoked, the promotion authority or higher commander, after legal review by the servicing staff judge advocate, may determine de facto status exists when the following conditions exist:  the Soldier accepted promotion in good faith; a promotion order was issued; the Soldier received pay in the higher grade; there was no absolute statutory bar to receipt of military pay; and the Soldier actually discharged the functions of 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SFC on 1 July 2010; however, he did not complete the required NCOES course within the prescribed period of time. Therefore, his promotion to SFC was revoked and he was reduced to SSG on 17 October 2011.  He did not complete the required NCOES course until after the revocation occurred on 18 December 2011.  He was later promoted to SFC on 13 February 2013.

	a.  The applicant was erroneously promoted based on a slating error and did not complete the requisite NCOES course prior to his promotion.  Additionally, he was not mobilized at the time of his promotion.

	b.  Based on the forgoing, there is insufficient evidence to justify adjusting his DOR for SFC to July 2010.

2.  The evidence of record shows he was erroneously promoted by a competent authority based on an error in the slating process.  His NCOERs show he was extremely competent in his performance of duty as an SFC.  Furthermore, the evidence of record indicates he accepted the pay and allowances of an SFC in good faith and without intent to defraud.

	a.  Notwithstanding the advisory opinion, the regulatory definition of de facto status states a "Member, who was promoted by competent authority, performed duties of the higher grade, and accepted pay and allowances of the higher grade in good faith and without intent to defraud" meets the criteria for placement in a de facto status.

	b.  The applicant clearly met the intent and spirit of the criteria for de facto status.  Therefore, his records should be corrected to place him in a de facto status and all pending collections should be terminated.  Further, if collection actions have been processed, any monies collected should be appropriately returned to the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending Orders 11-290-00029, issued by Headquarters, 81st Regional Support Command, Fort Jackson, SC, dated 17 October 2011, to add an additional instruction authorizing and directing de facto status
* ceasing all pending collection actions pertaining to the erroneous promotion and returning any monies that may have been collected as a result of processed collection actions to the applicant

2.  The Board further determined 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 adjusting his DOR to 1 July 2010.




      _______ _   _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)                                         AR20120022994



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ABCMR Record of Proceedings (cont)                                         AR20120022994



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