BOARD DATE: 12 February 2015
DOCKET NUMBER: AR20140017953
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, she be compensated the difference in pay between the rank/pay grade of second lieutenant (2LT/O-1) and rank/pay grade of first lieutenant (1LT/O-2) for the period 10 November 2012 to 20 March 2014.
2. The applicant states that she was not taken care of as a Soldier when her automatic promotion to 1LT was delayed. Further, she contends that she was never paid as a 1LT and she is entitled to back pay for the difference between 2LT and 1LT.
3. The applicant provides her previous Army Board of Correction for Military Records (ABCMR) case AR20140005779, dated 3 June 2014.
CONSIDERATION OF EVIDENCE:
1. A DA Form 71 (Oath of Office - Military Personnel) dated 13 September 2011, shows the applicant was appointed as Reserve commissioned officer in the grade of 2LT in the Army Nurse Corps. Her date of rank (DOR) was adjusted to 11 May 2011.
2. Her record contains U.S. Army Human Resources Command (HRC) Orders B-05-303321, dated 15 May 2013, which promoted her to 1LT in the U.S. Army Reserve (USAR) with an effective date and DOR of 10 November 2012. (However, it was later determined the applicants promotion had not been accomplished by the Secretary of Defense).
3. On 29 May 2013, she executed an Oath of Office and was ordered to active duty as a 2LT.
4. On 20 March 2014, HRC published Orders B-05-303321R, revoking the applicant's promotion to 1LT.
5. On 4 April 2014, she applied to the ABCMR requesting "relief of pay difference from the time I become active duty in 29MAY2013 until I will be promoted to 1LT as active duty in 29NOV2014. ARBA [Army Review Board Agency] is aware of my status and my promotion orders to 1LT in the Army Reserves was revoked by the HRC."
6. The Board determined that it was clear several errors were committed in the scrolling process and ongoing promotion process; unfortunately, there was no effective relief that the Board could 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 the Board.
7. However, the Board granted the applicant "defacto status" essentially relieving her from recoupment of any pay that she received as a 1LT in error.
8. On 28 July 2014, HRC implemented the Boards decision. However, after the applicants current application, it was discovered that since the applicant had never been paid as a 1LT DFAS could not implement the Boards directive.
9. Army Regulation 600-8-29 prescribes the policy and procedures for the promotion of active duty officers. It states that a promotion order will be revoked when the commander who executed the promotion, or a higher commander, determines that the promotion is void because the promotion was not authorized by competent authority.
10. If an officer's promotion is declared void and if the authority who revokes the promotion order determines that the officer had, before the declaration, accepted the promotion (for example, worn the insignia) in good faith and worked in the higher grade, then he or she will be deemed to have served in the higher grade in a de facto status. This period of de facto status will be from the date of the erroneous promotion until the date the officer received notice that it was void. This will allow the officer to keep any pay and allowances received at the higher grade. If it is proper to promote the officer at any time after the erroneous promotion, orders will be issued announcing the promotion.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows that the applicant was promoted to 1LT on
10 November 2012 and subsequently, on 20 March 2014, her promotion orders were revoked because they had been published without appropriate legal authority. The applicant now contends that she should have been paid as a 1LT from the effective date of her promotion until the time that her orders were revoked, 10 November 2012-20 March 2014.
2. Unfortunately, her promotion to 1LT was not accomplished by the Secretary of Defense and this promotion was voided, and as such, there is no regulatory provision that would allow the applicant to benefit financially from an error.
3. The Boards 3 June 2014 decision was made before it was discovered that she had never been paid as an O-2. Now that DFAS has clarified that she was never paid as an O-2 there is no need to grant her a defacto status.
4. In view of the above, her request should be denied.
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) AR20140017953
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ABCMR Record of Proceedings (cont) AR20140017953
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