PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  22 February 2001
	DOCKET NUMBER:  AR2000039087

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, revocation of orders issued to administratively reduce her from Sergeant First Class (SFC), pay grade E-7, to Staff Sergeant (SSG), pay grade E-6, for an Active Guard Reserve (AGR) program position; and she also asks for pay grade E-7 pay for the period of time she served at that grade.

3.  The applicant states, in effect, that she was promoted to SFC in the Army Reserve Individual Mobilization Augmentee (IMA) program on 1 December 1998. She was ordered on active duty in the AGR program on 24 January 1999 as a SSG but not administratively reduced to a SSG.  She continued to wear her SFC rank and served as such.  Her 29 March 1999 transfer orders from the IMA to the AGR program showed her as a SFC.  Her 13 May 1999 computer generated Standard Installation/Division Personnel System (SIDPERS) Personnel Qualification Record showed her as a SFC.  On 21 June 1999, she forwarded a Personnel Action request through her command to correct her records so that she would be paid as a SFC.  She frequently inquired about the requested action during the next several months.

4.  The applicant was informed by memorandum from the Chief, Personnel Management Division, U.S. Army Reserve Personnel Command (AR-PERSCOM), dated 23 November 1999, that she was administratively reduced to SSG commensurate with her AGR position.  She then received U.S. Army Total Army Personnel Command (PERSCOM) Order 308-1, dated 4 November 1999, reducing her to SSG effective 4 November 1999.  She applied for pay as a SFC from the date she came on AGR duty, 24 January 1999, to the date before her reduction, 3 November 1999.  She was denied this pay and a PERSCOM Order 033-13 was issued on 2 February 2000 amending her 4 November 1999 reduction date to 24 January 1999.  The order is in fact incorrect because it states erroneously that it amends an order for promotion to SSG, not a reduction order.  The applicant contends that according to Army Regulation 140-158, paragraph 7-4 (Effective Dates of Reduction), the order amendment is in contravention of the regulation and is illegal in that a reduction effective date cannot be any earlier than the date the reduction order is issued and received by the applicant.

5.  In effect, she contends that since she was a SFC, and since she was incorrectly and inefficiently reduced, that as a matter of fairness and justice, the reduction orders should be revoked and that she should be paid as a SFC.  She provides copies of orders and documents referred to in her statement.  

6.  The applicant’s military records show that she, an Army Reserve IMA SSG, applied for an AGR tour on 9 April 1998.  On 1 December 1998, she was promoted from SSG to SFC in the IMA program.  On 7 January 1999, she was ordered to active duty as a SSG in an AGR status for 3 years with a report date of 24 January 1999.  She completed AGR Entry Training at Fort McCoy on 
5 February 1999 and reported to her unit of assignment on 9 February 1999.

7.  The applicant’s orders transferring her from the IMA to the AGR program, dated 29 March 1999, showed her as a SFC.  The applicant’s SIDPERS-USAR Personnel Qualification Record printed on 13 May 1999 showed her rank and date of rank as SFC, 1 December 1998.  On 21 June 1999, the applicant applied to the AR-PERSCOM, Full Time Support Management Directorate, to correct her AGR orders to show her correct rank of SFC and to correct her pay records so that she could be paid correctly as a SFC.  On 4 November 1999, PERSCOM issued Order 308-1 administratively reducing her from SFC to SSG effective 
4 November 1999.  On 10 December 1999, the applicant applied to be paid as a SFC for the period of 24 January 1999, when she came on AGR duty, to 
3 November 1999, when she was administratively reduced to SSG.  
On 2 February 2000, PERSCOM issued Order 033-13, amending Order 308-1, changing the effective date from 4 November 1999 to 24 January 1999.  The Order 033-13 erroneously states that it is amending the promotion of the applicant to SSG.  The applicant was effectively denied both her promoted rank and pay for that rank.

8.  The applicant is still serving as an AGR soldier and was promoted again in that program to SFC effective 1 July 2000 by PERSCOM Order 167-38, dated 
15 July 2000.  This order was amended by PERSCOM Order 180-10, dated 
28 June 2000, to change the issue date of Order 167-38 from 15 July 2000 to 
15 June 2000.

9.  Army Regulation (AR) 140-158 (Army Reserve Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-4 (Effective Dates of Reduction), states, in the case of administrative reduction, that a reduction will be effective on the date that the reduction order is issued and received by the soldier or received at the soldier’s home station.

10.  An advisory opinion was provided by the Chief, Personnel Division, Office of the Chief, Army Reserve (OCAR), to the effect that the applicant was accepted into the AGR program in a SSG position and ordered to active duty in the AGR as a SSG.  The applicant rebutted that the order to active duty in the AGR program did not reduce her in rank from SFC to SSG and that such an order is not an instrument of reduction.  She contends that she served in an AGR status 

as a SFC in good faith from 24 January 1999 until she was administratively reduced on 4 November 1999.  She also contends that amendment to her 
4 November 1999 reduction order to change the reduction effective date from 
4 November 1999 to 24 January 1999 violates the AR 140-158 rules on reduction effective dates.

11.  On 3 February 1999, OCAR requested that the Deputy Chief of Staff for Personnel (DCSPER), Department of the Army, change the regulation and policy to allow soldiers who are accepted into the AGR program and subsequently promoted to a higher grade and rank prior to entering the AGR program, to retain their higher grade and rank in the AGR program.  On 8 March 1999, DCSPER approved this request.  The correction, however, did not apply to soldiers already accepted into the AGR program.

12.  Army Regulation 140-158, paragraph 1-8e, establishes the rules of de facto service.  In pertinent part, the soldier’s service in a higher rank and grade may be determined to have been de facto so as to allow the soldier to retain pay and allowances when a promotion order has been issued and the soldier occupied the higher grade and rank in good faith.

CONCLUSIONS:

1.  The applicant, a SFC, was ordered to active duty in the AGR program as a SSG on 24 January 1999, but she was not reduced to the rank of SSG until 
4 November 1999.  In the meantime, by promotion orders, she was a SFC and wore the rank of a SFC.  She served defacto as a SFC in good faith.  She should be paid as a SFC, pay grade E-7, for that period of time.

2.  On 4 November 1999, Order 308-1, administratively reduced the applicant from SFC to SSG.  According to AR 140-158, paragraph 7-4 on reduction, the effective date of this reduction is 4 November 1999, the date that the order was issued.  The 2 February 2000, Order 033-13, erroneously amended the effective date of reduction from 4 November 1999 to 24 January 1999.  This order is in violation of the AR 140-158, paragraph 7-4, which states that the effective date of a reduction is the date of issue of the order.  A retroactive reduction order is not a legal order.  The Order 003-13 is in further error in that it erroneously addresses the applicant’s promotion to SSG on Order 308-1 where that order does not deal with a promotion.  The 2 February 2000, Order 033-13, should be revoked as entirely erroneous.

3.  The OCAR and DCSPER have determined that it is unfair and unjust to require soldiers who are promoted to a higher rank after being accepted into the 

AGR program at a lower rank, to have to give up their higher rank.  This unjust and unfair practice has been rescinded but was not grandfathered.  As an exception to regulation and policy, and as a matter of justice and fairness, this current standard should also be applied to the applicant without regard for the grandfather restriction.  Her reduction orders should be revoked and the record corrected to show that she was in an AGR status as a SFC beginning 24 January 1999.  This will also necessitate revoking her later 1 July 2000 AGR SFC promotion order.  In summary, the end result should be that the applicant began her AGR tour at the rank of SFC and continued in that rank to the present time.  Consequently, she should also be paid at the pay grade of E-7 from 24 January 1999 through 30 June 2000.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below as a matter of justice and fairness.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected, as an exception to regulation and policy, for the individual concerned by:

	a.  revoking the PERSCOM Order 308-1, dated 4 November 1999, that reduced the individual from SFC to SSG;

b.  revoking the PERSCOM Order 033-13, dated 2 February 2000, that amended the Order 308-1 effective date; 

c.  revoking the PERSCOM Order 167-38, dated 15 July 2000, promoting the individual to SFC in the AGR program effective 1 July 2000; 

d.  revoking the PERSCOM Order 180-10, dated 28 June 2000, which amended the issue date of Order 167-38 from 15 July 2000 to 15 June 2000; 

e.  showing that she was in an AGR status as a SFC, pay grade E-7, beginning 24 January 1999; and

f.  providing the applicant full pay and allowances at the pay grade of E-7 from 24 January 1999 through 30 June 2000.

BOARD VOTE:  

__ro___  ___sk____  __tk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O’Connor, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR2000039087	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.  129.02	Revocation of Orders	
2.  131.00	Promotion	
3.		
4.		
5.		
6.