PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            30 November 2000  
	DOCKET NUMBER:   AR2000045381

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Thomas Lanyi		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 that he be advanced on the retired list to the grade of
staff sergeant (SSG), E-6, the highest grade he held on active duty.

3.  The applicant states, in effect, that he served satisfactorily in the grade of SSG and should be advanced on the retired list to that grade.   

4.  The applicant’s military records show he served in the United States Navy for 21 months prior to enlisting in the Regular Army on 15 January 1970 in pay grade E-2.  His military occupational specialty (MOS) was 75B (Personnel Administration Specialist).  Through reenlistments, he served on active duty continuously until his length of service retirement in pay grade E-5 on 1 May 1988, having completed a total of 20 years and 8 days active service.  

5.  While serving in Germany, the applicant was promoted to SSG by Departmental orders dated 26 August 1981. 

6.  On 24 April 1981, prior to his promotion, the applicant submitted an application to this Board asking for a correction of his records to show that the Navy Achievement Medal “with Combat “V” Device” was worth a minimum of eight promotion points and that he be promoted to SSG with a date of rank established accordingly. 

7.  On 24 November 1982 the U.S. Army Military Personnel Center (MILPERCEN) wrote to the applicant’s commander, stating that the applicant’s application for correction of military records (it is not clear if this is the same application mentioned in the preceding paragraph) could not be processed due to insufficient documentation and information.  The MILPERCEN stated that the Army Institute for Professional Development verified only 81 correspondence course hours, as indicated on the Student Memo ATSCFL 14A; however, the applicant’s DA Form 3355 (promotion point worksheet) stated he had earned 155 correspondence course hours.  The MILPERCEN informed the commander that verification of the additional 74 correspondence course hours was necessary in order to render a valid advisory opinion to this Board.  

8.  The MILPERCEN letter went on to state that if the applicant could not produce evidence of the additional 74 correspondence course hours, then he had been erroneously promoted to SSG in August 1981 and his promotion should be revoked and a determination should be made whether to award him de facto status.  

9.  By Departmental orders dated 3 January 1983 the applicant’s promotion to SSG was revoked.  On the same date a de facto status determination was made by the applicant’s command.  

10.  The Assistant Adjutant, Headquarters, 66th Military Intelligence Group, Intelligence and Security, informed the applicant that “I hereby approve a 
de facto status pertaining to you for the period 26 August 1981 through 2 January 1983, based upon the following facts:  (a) Promotion orders were published which promoted you to the grade of Staff Sergeant; (b) You did receive pay at the higher grade during the entire de facto status period; (c) You accepted the promotion in good faith; (d) You held the higher grade during the entire de facto status period; and (e) You actually performed the duty in the higher grade during the entire de facto status period.”  

11.  The letter further stated “[B]e advised that your de facto status period is exactly 1 year, 4 months and 8 days.  Should you ever be promoted to the grade of Staff Sergeant, under the provisions of Army Regulation 600-20 (Army Command Policy and Procedures), your E6 date of rank (DOR) will be adjusted back to give you credit for the time you have already honorably served in that grade.“   

12.  At the request of the staff of this Board, the Army Grade Determination Review Board (AGDRB) looked at the facts of this case and returned it without action, stating, essentially, that the applicant was erroneously promoted to E-6, and he was not eligible to apply for advancement on the retired list.   

13.  Black’s Law Dictionary, Sixth Edition, which contains definitions of the terms and phrases of American and English jurisprudence, ancient and modern, defines de facto as “in fact, in deed, actually.”  It further defines the term thusly, “This phrase is used to characterize an officer, a government, a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate.”

14.  Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

CONCLUSIONS:

1.  The Board notes that through no fault of his own and with no intent to defraud or deceive, the applicant was erroneously promoted to staff sergeant, in that he was incorrectly given credit for completing more correspondence courses than he apparently had completed.   

2.  After reviewing all the facts and circumstances, the Board finds no error in this case related to the applicant’s erroneous promotion or the revocation of that promotion and the granting of de facto status.  

3.  The determination made by the AGDRB that the applicant is not eligible to apply for advancement on the retired list because his promotion to SSG was erroneous is accepted by the Board.  However, in addition to or aside from, determining the existence of error in a case, this Board also has the latitude to look for and determine if an injustice exists in a case.  Considering the facts of this case from that viewpoint, the Board is of the opinion that an injustice does exist in this case.   

4.  The law (10 U.S.C. 3964) provides, pertinently, for the advancement of an eligible retiree on the retired list to the highest grade satisfactorily held, as determined by the Secretary.  The AGDRB, acting for the Secretary, makes this determination.  

5.  This Board is aware that in determining the highest grade satisfactorily held in the case of eligible retired enlisted soldiers, the AGDRB looks to see if: 
(1) revision to a lower grade was expressly for prejudice or cause, due to misconduct or punishment pursuant to Article 15, Uniform Code of Military Justice or court-martial; or (2) if there is information in the soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.  This Board has observed that, without exception, in the absence of documented misconduct or when there was nothing adverse or derogatory in the individual’s record, service in the highest grade held was deemed satisfactory.

6.  Using the foregoing criteria as guidance, the Board notes that the applicant served honorably and satisfactorily, without any documented misconduct, in pay grade E-6 for 1 year, 4 months, and 8 days, as attested to by his command upon the granting of de facto status.  Further, while regulatory provisions necessitated the revocation of the promotion resulting in the applicant properly reverting to pay grade E-5, in the opinion of the Board, the revocation, in and of itself, did not cancel, annul, or invalidate the prior service performed in the higher grade.  

7.  Also, considering the definition of “de facto,” the Board agrees that the promotion was illegal, thus, forming a proper basis for the AGDRB’s action.  However, the Board cannot ignore the fact that service in the higher grade was “in fact,” and “in deed” and was “actually” performed by the applicant.  The fact that the service was creditable for subsequent date of rank adjustment supports this position.  

8.  Most importantly, the Board is of the further opinion that such service should “be accepted for all practical purposes” and approved as service satisfactorily performed in a higher grade for the purpose of advancement on the retired list.  

9.  In view of the foregoing, the interests of justice would best be served by correcting the applicant’s records as recommended below.  

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected;

a.  by showing that the highest grade satisfactorily held by the individual concerned for the purpose of computation of retired pay and determining the grade to which he should be advanced on the retired list under the provisions of 10 U.S.C. 3964 was staff sergeant (E-6); and 

b.  by showing that he was advanced on the retired list to the grade of staff sergeant (E-6) on the earliest date of eligibility, as determined by the Army Reserve Personnel Command, St. Louis, Missouri.   

BOARD VOTE:  

__JNS___  __CLA__  ___TL___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____John N. Slone_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000045381	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001130	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT )	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.