MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 January 2002
	DOCKET NUMBER:   AR2001059881

	I certify that hereinafter is recorded the record of consideration 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. Luther L. Santiful		Chairperson	
	Mr. Roger Able		Member	
	Mr. Terry L. Placek		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that her promotion effective date and date of rank (DOR) to staff sergeant/E-6 (SSG/E-6) be adjusted to 1 November 1999.

APPLICANT STATES:  In effect, that she was originally promoted to SSG/E-6, effective 1 November 1999, and a second time on 1 November 2000.  She claims that her original promotion was determined to be erroneous by the Total Army Personnel Command (PERSCOM) based on the fact that she was in a nonpromotable status.  The reason for this status was that she was being processed by a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB).  She claims that she was never informed by local personnel officials that her MMRB processing placed her in a nonpromotable status, the erroneous promotion was not her fault, and that she accepted the promotion in good faith.  In support of her application, she submits the following documents:  Personnel Action Request (DA Form 4187), requesting an exception to policy for promotion; a 23 October 1999 promotion order to SSG; a SSG promotion revocation order, dated 1 May 2001; a promotion order to SSG, dated 1 May 2001; a request for de facto status; and her Enlisted Record Brief (DA Form 2-1).

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant is currently serving as a SSG/E-6 on active duty, in MOS 88N (Transportation Management Coordinator), at Fort Bragg, North Carolina. 

On 7 May 1997, she was recommended for promotion to SSG in MOS 31R (Multichannel Transmissions System Operator-Maintainer) and placed on the promotion standing list in that MOS with a total of 635 promotion points.  On 
29 March 1999, she was reevaluated and her promotion point total increased to 694 points.  

On 23 September 1999, the applicant appeared before an MMRB which evaluated her ability to perform the duties in MOS 31R in a worldwide environment given the limitations imposed by her permanent physical profile.  The MMRB determined that her physical profile hindered her ability to perform her duties in MOS 31R and recommended that she be reclassified into a less physically demanding MOS.  

Subsequent to being evaluated by the MMRB, on 1 November 1999, the applicant was erroneously promoted to SSG in MOS 31R.  On 13 December 1999, the findings and recommendations of the MMRB were approved and the applicant’s reclassification into another MOS was directed.  On 18 September 2000, PERSCOM approved her reclassification into MOS 88N.

On 7 December 2000, the applicant requested an exception to policy to retain her rank of SSG with an effective date of 1 May 2000.  She based this request on the fact that she had not been informed that she was in a nonpromotable status, the excessive delay in the processing her request for reclassification, and given she met the announced Department of the Army (DA) promotion cut-off score in her new MOS prior to her reclassification being approved.  

On 24 April 2001, PERSCOM approved the applicant’s retention of her rank with an adjusted effective date and DOR of 1 November 2000.  In addition, PERSCOM officials advised the applicant that she could apply for de facto status under the provisions of paragraph 1-17, Army Regulation 600-8-19. 

Orders 121-7, dated 1 May 2001, issued by Headquarters, 18th Personnel Services Battalion, Fort Bragg, North Carolina, revoked the applicant’s original SSG promotion order, Orders Number 296-405, which had authorized her promotion on 1 November 1999.

Orders 121-8, dated 1 May 2001, issued by Headquarters, 18th Personnel Services Battalion, Fort Bragg, North Carolina, promoted the applicant to SSG in MOS 88N, effective 1 November 2000.

On 9 May 2001, the applicant requested de facto status for the period from 
1 November 1999, the date of her original promotion to SSG, to 1 November 2000, the adjusted date of her SSG promotion.  On 7 June 2001, PERSCOM approved this request. 

Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 1-10 states, in pertinent part, that soldiers undergoing the MMRB process are placed in a nonpromotable status.  Paragraph 1-17 provides the criteria for granting de facto determinations for soldiers who are erroneously promoted in order to allow them to retain any pay and allowances received at the higher grade when the soldier accepted the promotion in good faith, held the higher grade, and performed duties in the higher grade.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes and concurs with the applicant’s contention that the erroneous promotion was through no fault of her own and that she was never informed she was in a nonpromotable status while undergoing the MMRB process.  However, while the Board concurs with her claim that her erroneous promotion was through no fault of her own, it finds this factor is not sufficiently mitigating to warrant the requested relief.  
2.  The evidence of record clearly shows that the applicant was erroneously promoted to SSG, in MOS 31R, subsequent to the MMRB concluding that she could not perform duties in that MOS based on her physical profile limitations.  Further, the promotion was accomplished while she was undergoing the MMRB process and in a nonpromotable status.  

3.  Therefore, even if the applicant’s contentions are true, it is clear she was in a nonpromotable status on the date she was promoted and that it had already been determined by competent authority, the MMRB, that she could not perform the duties of the MOS in which she had been erroneously promoted.  It is also clear that once the erroneous promotion was discovered, appropriate measures to correct the administrative error were taken by revoking the erroneous promotion in accordance with applicable regulations.  

4.  Further, the record shows that this administrative error was resolved in favor of the applicant by granting her an adjusted promotion to SSG in her new MOS and de facto status to ensure she suffered no monetary loss as a result of the erroneous promotion.  Thus, the Board finds that the original promotion error was administratively resolved with no resultant injustice to the applicant.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__LLS___  ___RA___  __TLP___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001059881	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/01/08	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.04	
2.		
3.		
4.		
5.		
6.