IN THE CASE OF:	  

		BOARD DATE:	 3 June 2014 

		DOCKET NUMBER:  AR20140005779 


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, correction of her records to show she is relieved from recoupment of the pay difference between first lieutenant (1LT) and second lieutenant (2LT) from the time she entered active duty on 29 May 2013 until she is officially promoted to 1LT on 29 November 2014.

2.  The applicant states the error and injustice were caused by the Army in not scrolling her and promoting her on time.  Promotion from 2LT to 1LT is automatic and it is the responsibility of the higher command to ensure that her promotion goes smoothly.  She did her part by trying to follow up on her promotion orders back in November 2012 when she expected to be promoted, but she was told she just had to wait because it was an automatic promotion.  She received her orders late in May 2013 and she is just now (26 March 2014) finding out that her promotion orders were revoked due to a faulty process.

3.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) Docket Number AR20130020942, dated 23 January 2014
* previous decision from the Department of the Army Office of the Deputy Chief of Staff, G-1
* Orders B-05-303321 (promotion)
* Orders B-05-303321R (revocation of promotion)


CONSIDERATION OF EVIDENCE:

1.  Having prior U.S. Army Reserve (USAR) enlisted service, the applicant was awarded a Bachelor of Science in Nursing degree on 25 May 2010.  She was honorably discharged from the USAR on 12 September 2011 to accept a commission.

2.  On 13 September 2011, she was appointed as a Reserve commissioned officer of the Army in the rank of 2LT and she executed an oath of office.  Her date of rank (DOR) was adjusted to 11 May 2011.

3.  On 14 August 2012, the U.S. Army Human Resources Command (HRC) ordered her to active duty for training to attend the Army Medical Department Basic Officer Leader Course (BOLC).  She attained/completed BOLC from 28 September to 23 October 2012.

4.  HRC Orders A-04-306155, dated 25 April 2013, ordered her to active duty in the grade of rank of 2LT effective 29 May 2013 to fulfill her active duty requirement in a voluntary indefinite status.  She was assigned to Company D, 187th Student Company, Fort Sam Houston, TX.  Her DOR is shown as 11 May 2011 and her component is shown as Regular Army (RA).

5.  HRC Orders B-05-303321, dated 15 May 2013, promoted her to 1LT in the USAR with an effective date and DOR of 10 November 2012.

6.  On 29 May 2013, she executed an oath of office for appointment in the RA Army Nurse Corps (ANC) in the rank of 2LT.

7.  Her Officer Record Brief, dated 9 December 2013, shows:

* her component as RA
* her active duty grade as 2LT with an active duty DOR of 11 May 2011
* her basic date of appointment as 13 September 2011
* she entered the current tour of active duty on 29 May 2013

8.  In a memorandum to the Army Review Boards Agency, dated 14 November 2013, the HRC Active Duty Nurse Program Manager stated:

	a.  The applicant requested correction of her records on 1 July 2013.  She was commissioned as a 2LT in the USAR, ANC, on 13 September 2011.  She received orders for BOLC beginning May 2013.  On 29 May 2013, she executed her oath of office as a 2LT in the RA, ANC.  However, she had previously been promoted to 1LT in the USAR with an effective date of 10 November 2012 by orders, dated 15 May 2013.  On 17 July 2013, the U.S. Army Recruiting Command (USAREC) Health Services Directorate rendered a favorable opinion for an adjustment to her DOR.

	b.  USAREC did not scroll her as a 1LT when she was recruited for the RA; her USAR promotion orders were not available at that time.  USAREC is unable to scroll her as a 1LT at this time.  Without a scroll for 1LT, HRC is unable to correct her accession orders.

9.  On 23 January 2013 in response to her request for correction of her rank to 1LT with prior enlisted service, the Board granted her relief in ABCMR Docket Number AR20130020942 and recommended correction of her records by:

* revoking the orders issued by HRC on 25 April 2013 ordering her to active duty as an RA officer in the rank of 2LT
* issuing new orders ordering her to active duty from the USAR in the rank of 1LT for a period of 18 to 24 months effective 29 May 2013 with a DOR to 1LT of 12 November 2012
* paying her any and all active duty pay and allowances due, minus any possible offsets, effective 29 May 2013 as a result of this correction
* expeditiously resubmitting her accession packet in the rank of 1LT
* issuing her an RA appointment memorandum in the rank of 1LT upon scrolling

10.  On 21 March 2014, the Army G-1 issued a memorandum in response to the ABCMR's determination and recommendation regarding the applicant's request for correction of her rank and amendment of her rank on her orders to active duty.  The G-1 indicated that office was unable to execute the Board's recommendations due to the below stated reasons:

	a.  The Army G-1, in coordination with the Office of the Under Secretary of Defense for Personnel and Readiness (USD P&R) and HRC, determined the applicant's promotion to 1LT in the USAR was not approved by the appropriate authority.  All recommendations for promotion to grades below colonel in the USAR require approval by the Secretary of Defense, acting on behalf of the President, before promotion orders may be published.

	b.  In attempting to correct the applicant's rank, the Army G-1 was informed by USD P&R that the Secretary of Defense had not received or approved a promotion recommendation for her.  A thorough search through records in the Army G-1 and HRC failed to reveal a promotion nomination for the applicant to the rank of 1LT was either submitted or approved prior to publication of her promotion orders.  Accordingly, her promotion orders (HRC Orders B-05-303321, dated 15 May 2013) were published without legal authority.  As a result, the Army G-1 directed HRC to revoke the promotion orders.  This was accomplished in HRC Orders B-05-303321R, dated 20 March 2014.

	c.  Since the applicant's USAR promotion orders were revoked, she was properly assessed into the RA and is serving on active duty in the correct rank.  She will be eligible for promotion in the RA on 29 November 2014, if otherwise qualified.

10.  On 26 March 2014, in a supplemental Record of Proceedings to ABCMR Docket Number AR20130020942, dated 23 January 2014, the Board indicated:

	a.  At the time of the ABCMR decision in Docket Number AR20130020942, dated 23 January 2014, it was the Board's intention to make the applicant's records as administratively correct as they should have been at the time.

	b.  The ABCMR's decision in Docket Number AR20130020942 was not privy to the fact that a promotion nomination for the applicant to the rank of 1LT was neither submitted to nor approved by the Secretary of Defense prior to publication of her promotion orders.  There was, in fact, no scroll for her promotion to 1LT.  As such, HRC Orders B-05-303321, dated 15 May 2013, were published without legal authority.  Therefore, the Army G-1 directed HRC to revoke the promotion orders.  This was accomplished in HRC Orders B-05-303321R, dated 20 March 2014.

	c.  The Board recommended amendment of the decision set forth in Docket Number AR20130020942, dated 23 January 2014, to void the Board Determination/ Recommendation and/or recommended correction.

	d.  The Board determined the action by the Army G-1 in directing HRC to revoke the applicant's promotion orders is correct.  The applicant remains in the rank of 2LT until she is fully eligible for promotion to 1LT.

	e.  In response to the applicant's original request for correction of her rank to 1LT with prior enlisted service and amendment of her active duty orders to the correct rank, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

11.  A Principal Deputy USD memorandum delegates to the Secretary concerned a determination on a case-by-case basis that debt repayment will not be required if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued promotion orders to 1LT on 15 May 2013 with an effective date of 10 November 2012.  She entered active duty on 29 May 2013 and appears to have been paid in the rank of 1LT from that date.  However, her promotion to the rank of 1LT was neither submitted to nor approved by the Secretary of Defense prior to publication of the promotion orders.  In other words, there was no scroll for her promotion.  Accordingly, her promotion orders to 1LT issued on 15 May 2013 were revoked.  This revocation led to an adjustment of pay from 1LT to 2LT from 29 May 2013 to the present.

2.  Although it is clear that several errors were committed in the scrolling process and ongoing promotion process, unfortunately, there is no effective relief that this Board can provide.  Scrolling and promotions remain a Secretary of Defense process and any corrections to the applicant's records would effectively amend the Secretary of Defense's actions and is beyond the authority of this Board.

3.  Nevertheless, she should not be held accountable for the administrative errors.  Her pay at the rate for 1LT was based on an error committed by the Army.  The revocation of her promotion effectively resulted in a potential debt (the difference in pay between 1LT and 2LT) that she presumably must repay.  Debt repayment will not be required if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States.  Her case clearly fits this criteria.

4.  Therefore, as a matter of equity, she should be awarded de facto status for pay at the rate for 1LT from 29 May 2013 (the date she entered active duty) to 14 March 2014 (the date her promotion orders were revoked).

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 issuing her an appropriate document that authorizes her de facto status to keep the active duty pay in the rank of 1LT/O-2 from 29 May 2013 to 14 March 2014.

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 allows her to continue to receive active duty pay at the rate for 1LT/O-2 until she is officially promoted on 29 November 2014.



      _____________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)                                         AR20140005779



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ABCMR Record of Proceedings (cont)                                         AR20140005779



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