MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 April 2002                   
	DOCKET NUMBER:   AR2002066737

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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 his debt regarding his promotion be cancelled.

APPLICANT STATES:  That he signed his declination to reenlist before the Army promoted him so they knew he did not intend to remain in the service.  His separation orders were issued in August 1999 by the same organization that issued his demotion orders in October 1999.  He was told by the transition point Noncommissioned Officer (NCO) that the demotion orders only mentioned a reduction in rank, not a recovery of back pay.  He served honorably during the period in question and performed the duties and functions of a Sergeant First Class (SFC), E-7.  

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

He enlisted in the Regular Army on 15 May 1984.  He was promoted to Staff Sergeant (SSG), E-6 on 3 June 1993.  His three NCO Evaluation Reports (NCOERs) for the periods November 1995 – July 1997 show he performed duties as a Special Forces Engineer Sergeant 18C40 (the “4” indicating the skill level of an E-7).  

On 16 December 1998, the applicant signed a Declination of Continued Service Statement.  He was counseled and acknowledged that he would be placed in a nonpromotable status and that he would be removed from a promotion standing list, if applicable.

Order 351-21, U. S. Total Army Personnel Command (PERSCOM) dated          17 December 1998 promoted the applicant to SFC, E-7 effective 1 January 1999.

Orders 237-0001, Headquarters, 7th Infantry Division and Fort Carson dated      25 August 1999 reassigned the applicant to the U. S. Army transition point with a reporting date of 21 December 1999.

Order 300-2, PERSCOM dated 27 October 1999 revoked its Order 351-21.

The applicant’s NCOERs for the periods August 1998 – May 1999 and          June – October 1999 show he performed duties as a Special Forces Engineer Sergeant 18C40.

Orders 333-0008, Headquarters, 7th Infantry Division and Fort Carson dated     29 November 1999 amended its Orders 237-0001 to change the standard name line to show the applicant’s rank as SSG. 

On 21 December 1999, the applicant was discharged upon completing his required active service in pay grade E-6.  His Certificate of Release or Discharge from Active Duty, DD Form 214, item 11 shows his primary specialty as 18C4P (the skill level should have reverted back to “3” upon the revocation of his E-7 promotion orders and item 12h erroneously reflects his SFC date of rank rather than his SSG date of rank of 3 June 1993.

By letter dated 7 April 2001, the Defense Finance and Accounting Service (DFAS) responded to the applicant’s inquiry concerning his indebtedness and informed him that his principal debt balance of $2,405.38 was valid.  DFAS noted that the applicant’s demotion was not posted to his pay account until after he separated from the Army, that the debt was also due to the collection of Parachute Pay from 1 July – 31 October 1999, and that the remainder of the  debt was due to receipt of the regular end-of-month direct deposit which included pay and allowances through 31 December 1999 and was based on the rank of  E-7.

Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  In pertinent part it states that erroneous promotions will be revoked.  When a soldier has been erroneously promoted, a determination of de facto status may be made only to allow the soldier to keep any pay and allowances received at the higher grade when (1) promotions orders have been issued; (2) pay at the higher grade has been received; and (3) the soldier accepted the promotion in good faith.  

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.  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.

2.  The applicant signed his declination to reenlist on 16 December 1998.  It is not reasonable to expect PERSCOM, the headquarters which issued his promotion orders, to have had this information when it published the orders on   17 December 1998.  

3.  It was reasonable to have expected the applicant, who acknowledged on      16 December 1998 that he would be placed in a nonpromotable status and that he would be removed from a promotion standing list, if applicable, to have informed his chain of command or his military personnel office or his managers at PERSCOM immediately upon receiving his promotion orders that he was not in a promotable status and the orders were no longer valid.  It was reasonable to have expected him to decline to have had E-7 rank pinned on him.  It was reasonable to have expected him to inform finance the first time he received E-7 pay that he was not entitled to E-7 pay and to expect that his promotion orders to be revoked in the future.  

4.  The applicant’s separation orders were issued in August 1999 by Headquarters, 7th Infantry Division and Fort Carson.  That headquarters did not issue his demotion orders in October 1999; PERSCOM did. 

5.  The applicant’s argument that he was told by the transition point NCO that the demotion orders only mentioned a reduction in rank, not a recovery of back pay, is not convincing.  The Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties. In any case the applicant, as noted above, knew that he was in a nonpromotable status when he received his promotion orders and should not have been surprised when his promotion orders were revoked with the erroneously paid differential between E-6 and E-7 pay recouped.  

6.  The Board notes that the applicant did perform the duties and functions of an SFC after he was promoted.  However, his NCOERs also show that he performed those same duties prior to his promotion to SFC and so this is not a convincing argument.  

7.  The Board notes that there are two administrative errors on the applicant’s DD Form 214 relating to the promotion issue; however, he does not request correction of his DD Form 214 and the Board will not unilaterally make those corrections.

8.  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

__jl____  __gdp___  __cg____  DENY APPLICATION

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

INDEX

CASE ID	AR2002066737	
SUFFIX		
RECON		
DATE BOARDED	20020425	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.