IN THE CASE OF:	  

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130006686 


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 the effective date of his reduction order be changed from 21 June 2011 to 13 July 2012 or his debt for overpayment of Basic Pay and Basic Allowance for Housing (BAH) due to the reduction in rank be remitted.

2.  The applicant states:

	a.  either reduce or eliminate the debt ($3,145.88) because of the response time of his unit.  He submitted the exception to policy (ETP) on 30 June 2011 and it was never acted upon until 29 June 2012.  That is grounds for appeal of this decision.

	b.  he was counseled on a DA Form 4856 (Developmental Counseling Form) on 21 June 2011 in regard to being reduced from E-8 to E-7 per the Shaping the Force Policy.  However, he was never directed to check block 2 of the exceptions statement.  He submitted an ETP on 30 June 2011.  The ETP was never processed until 29 June 2012.  The delay in processing caused a one-year lapse in a reduction order being published on 13 July 2012 with an effective date of 
21 June 2011.  This created a debt in the amount of $3,145.88.  He believes the appropriate effective date of the order should be 13 July 2012, which would reduce the debt. 

3.  The applicant provides:

* DA Form 4856 dated 21 June 1011
* ETP memorandum, dated 21 June 2011
* Endorsement memoranda, dated 30 June 2011 and 29 June 2012
* ETP denial letter, dated 13 July 2012
* Orders 12-195-00051, issued by Headquarters, 99th Regional Support Command (RSC), Fort Dix, NJ, dated 13 July 2012
* Orders 12-283-00001, issued by Headquarters, 301st Regional Support Group, Butler, PA, dated 9 October 2012
* DD Form 2789 (Waiver/Remission of Indebtedness Application), dated
16 July 2012
* Memorandum to a Member of Congress issued by Headquarters, U.S. Army Reserve Command (USARC), Fort Bragg, NC, dated 3 December 2012

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army, the applicant enlisted in the USAR on 5 February 1988 in pay grade E-6.  He was promoted to master sergeant (MSG)/E-8, effective 1 February 2008.

2.  In March 2010, he was assigned to a sergeant first class (SFC)/E-7 position.

3.  A DA Form 4856, dated 21 June 2011, shows he was counseled regarding the Army Reserve Shaping the Force – Eliminating Senior Grade overstrength program objectives.  He signed and initialed, acknowledging he was overstrength and would voluntarily elect an administrative reduction to remain assigned to the position for which he was overgraded.

4.  On 21 June 2011, the applicant submitted an ETP to allow an overgrade assignment.

5.  He provides a memorandum, dated 30 June 2011, that shows his unit submitted an ETP to allow an overgrade assignment for the applicant.  He also provides a memorandum, dated 29 June 2012, that shows his unit submitted an ETP request for the applicant to USARC.

6.  In July 2012, the applicant's request for an ETP was denied by USARC.  The letter states:

	a.  he has been overstrength for more than 2 years.  He was promoted to MSG in 2008 and placed in his current position in 2010.

	b.  he is qualified to fill his current position at a lower rank.  Recommend he take a reduction in rank in order to meet his condition of employment.


	c.  he was counseled regarding his options of the Shaping of the Force Policy in June 2011.  He either needs to take a reduction in rank or be involuntarily placed in the Individual Ready Reserve (IRR).  His reduction in rank will be retroactive to the date of counseling.

7.  Orders 12-195-00051, dated 13 July 2012, reduced him from MSG to SFC, effective 21 June 2011.  

8.  On 16 July 2012, he submitted a DA Form 2789, requesting a waiver/
remission of indebtedness.

9.  On 30 November 2012, his application was disapproved by the Defense Finance and Accounting Service (DFAS), Indianapolis, IN.

10.  Orders 12-342-00019, issued by Headquarters, 99th RSC, dated 
7 December 2012, promoted the applicant to MSG effective 15 October 2012 with a date of rank of 1 February 2008.

11.  On 27 March 2013, the Office of the Inspector General, USARC, responded to his request for assistance regarding an issue with a voluntary reduction date and the debt incurred as a result of that action.  The letter states:

* that office conducted a thorough inquiry into his request for assistance
* their inquiry determined the date of reduction was valid
* the source document was the DA Form 4856, signed on 21 June 2011, in which he elected to take a voluntary reduction in lieu of a transfer to the IRR
* when a waiver or ETP request is submitted, it temporarily suspends the current action or source document
* if the waiver or ETP is disapproved, the source document goes into effect
* in his case, the DA Form 4856 became effective and the date of that document was 21 June 2011
* it was determined that it took from 1 June 2011 until 29 June 2012 for his chain of command to process and submit his request to the approval authority
* the approval authority received the request on 2 July 2012 and rendered a decision on 13 July 2012
* it is reasonable to conclude that had the packet been forwarded for action sooner, the reduction action would have taken effect sooner and the debt incurred would have been lower


DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was promoted to MSG in February 2008 and he was assigned to an SFC position in March 2010.

2.  In June 2011, he was counseled regarding the overstrength program objectives and he signed and acknowledged he was overstrength and that he would voluntarily elect an administrative reduction to remain assigned to the position for which he was overgraded.

3.  On 13 July 2012, his ETP was denied and he was reduced from MSG to SFC, effective 21 June 2011.  As a result, he incurred a debt for overpayment of BAH.

4.  His contentions were carefully considered.  However, there is no evidence of record and he provided no evidence that shows this debt was incurred erroneously.

5.  It also appears his date of reduction is valid.  The source document is the 
DA Form 4856 that he signed on 21 June 2011 wherein he elected to take a voluntary reduction in grade in lieu of a transfer to the IRR.  When a waiver or ETP request is submitted, it temporarily suspends the current action or source document.  If the waiver or ETP is disapproved, the source document goes into effect.  In his case, the DA Form 4856 became effective and the date of that document was 21 June 2011.  The applicant did not exercise due diligence by setting aside a portion of his pay (i.e., the difference between E-7 and E-8 pay) pending action on his ETP.

6.  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)                                         AR20130006686



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006686



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1