BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20170006765 BOARD VOTE: ____x_____ ___x____ __x______ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20170006765 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. issuing a document correcting his date of rank and effective date of rank to chief warrant officer two (CW2) to 2 July 2016, and b. paying him back pay and allowances due as a result of these corrections ___________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. BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20170006765 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 adjustment of his date of rank (DOR) to chief warrant officer two (CW2) from 30 March 2017 to 2 July 2016. 2. The applicant states: a. He was referred to a Promotion Review Board (PRB) due to an investigation in 2005, where he was wrongfully accused and later cleared by a court of law in Missouri. b. He received no legal or Uniform Code of Military Justice (UCMJ) action, nor any negative remarks on his evaluations from any level of command. c. Due to his innocence and the nature of the PRB process, he believes that his original DOR of 2 July 2016 should be reinstated. 3. The applicant provides: * Criminal Investigative Division (CID) Final Report, dated 22 October 2004 * DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 24 February 2005 * Hardin Circuit Court Separation Agreement, dated 13 September 2007 * Juvenile Dependency, Neglect and Abuse Petition, dated 5 September 2013 * DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 19 May 2016 * Memorandum For Applicant, issued by U.S. Army Human Resources Command (HRC), Fort Knox, KY, subject: Delay of Promotion and Referral to a PRB, dated 8 June 2016 * Memorandum for President, PRB, issued by Bravo Company, 710th Brigade Support Battalion, 3rd Brigade Combat Team, 10th Mountain Division (Light Infantry), Fort Polk, LA, subject: Rebuttal to Delay of Promotion and Referral to PRB, applicant, dated 15 June 2016 * DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) * DA Forms 67-10-1 (Company Grade Plate Officer Evaluation Report) * six letters of support * Enlisted Record Brief * Officer Record Brief * Secretary of the Army, Memorandum for Deputy Chief of Staff, subject: PRB, AP1610-25, Fiscal Year 2016 Promotion Eligibility to CW2, dated 16 March 2017 * DA Form 268, dated 20 March 2017 CONSIDERATION OF EVIDENCE: 1. The applicant had prior enlisted service in the Regular Army from 14 April 1998 to 1 July 2014, when he was honorably discharged to accept a commission or warrant in the Army. 2. On 2 July 2014, the applicant signed his oath of office and was appointed as a Reserve warrant officer (WO) in the pay grade of WO1 on 2 July 2014. 3. A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant completed the Warrant Officer Basic Course (WOBC) for Automotive Maintenance on 7 October 2014. 4. A DA Form 268, dated 19 May 2016 shows a flag was initiated by Headquarters, Department of the Army effective 21 March 2016 for removal from a promotion selection list. 5. On 8 June 2016, the applicant received a letter from HRC notifying him that during a post selection screening process for promotion to CW2, his name was flagged due to a CID report, dated 22 October 2004, in accordance with Title 10, U.S. Code, section 624 and Army Regulation 600-8-29 (Officer Promotions), chapter8. Therefore, his promotion to CW2 was delayed and his case would be referred to a PRB, pending his response and the final outcome. He was advised his records would be forwarded to the Department of the Army Secretariat for further review. He was advised it would take 8 months to one year from this notification to the final decision. He acknowledged receipt of this memorandum. 6. On 15 June 2016, the applicant submitted a rebuttal letter to the President, PRB, wherein he explained the circumstances regarding the CID investigation, which happened in 2004 during a disputed divorce and custody case. He stated the State of Missouri and CID closed their respective investigations due to lack of evidence. In 2007, his divorce was finalized and he was granted shared custody of his two children by the State of Missouri. Subsequently, he now has full custody of his children. He stated he has served in the Army with integrity and honor for more than 18 years with an exemplary performance record. 7. A DA Form 268, dated 20 March 2017, shows the flag for his promotion to CW2 was removed, with an effective date of 16 March 2017, and his case was closed favorably. 8. Order 417-117-WO27-178, issued by Headquarters, HRC, Fort Knox, KY, dated 27 April 2017, shows he was promoted to CW2 with a DOR and effective date of 30 March 2017 by order of the Secretary of the Army. Further instructions show the Office of Secretary of Defense (OSD) provided an authorization number with an OSD authorization date of 15 November 2016. 9. On 26 May 2017, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, HRC, wherein he stated: a. Based on a review of our records, data systems, Army Regulation 600-8-29, and the information provided, he finds that the applicant's request to adjust his DOR does have merit, in part. Army Regulation 600-8-29, paragraph 3-4, clarifies that in his case, he could have been promoted/appointed to CW2 with a DOR and effective date of 2 July 2016. b. The applicant's name was initially withheld from appointment to CW2 based on adverse information on file. This is a requirement based on Title 10, U.S. Code, section 3583 and Army regulations. Subsequently, a PRB was held, and a recommendation made whereby the applicant was approved for appointment to CW2. c. The applicant was not denied appointment to CW2; therefore, he recommends granting full relief and adjustment of his DOR and effective date retroactive to his promotion eligibility date of 2 July 2016 pursuant to Title 10, U.S. Code, section 742 (Rank Warrant Officer), (unless proven otherwise ineligible). The recommendation allows the officer seniority on the active duty list pursuant to Army Regulation 600-8-29 and Title 10, U.S. Code, section 742. 10. On 6 June 2017, a copy of the advisory opinion was forwarded to the applicant for an opportunity to respond. However, he did not respond. REFERENCES: 1. Army Regulation 600-8-29 prescribes policies and procedures for officer promotions. a. Table 3-3 shows the promotion effective date to CW2 will be 2 years from the most recent date of entry on active duty if the WO has served not less than 18 months as a WO1 on the active duty list. Active duty service as a commissioned officer before appointment as a WO will also count as active duty service. b. Paragraph 8-1(General), subparagraph b, the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board (10 USC 629(a)). This authority has been delegated to the Secretary of the Army. The Secretary of the Army may also remove the name of a warrant officer who is on a promotion list (10 USC 579(b)). (1) PRBs are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. In such instances, a PRB may also be conducted when an officer's name appears on a report of a selection board, although the Secretary's final decision or recommendation under paragraph 8-8, below, may not be made until the report is approved by the President or his authorized designee. (2) An officer, in a grade above second lieutenant, is considered to be on a promotion list when the officer's name appears on a report of a promotion selection board (PSB) which has been approved by the President or his authorized designee. A warrant officer is considered to be on a promotion list when the officer's name appears on a report of a PSB which has been approved by the Secretary of the Army (10 USC 578(a)). b. Paragraph 8-8 (Board recommendation), subparagraph c, the PRB's recommendation is only advisory to the Secretary of the Army. In cases involving promotion to the grade of colonel or below, the board's report will be forwarded to the Secretary of the Army who, on behalf of the President, may remove from the promotion list the name of the officer, in a grade above second lieutenant, retain the officer on the promotion list, return the report to the Deputy Chief of Staff, G-1, or direct other appropriate action. The same options apply when the Secretary acts under his authority to remove warrant officers from a promotion list. c. Paragraph 8-10 (Effect of removal), an officer whose name is removed from a promotion list continues to be eligible for consideration for promotion under 10 USC 629(c) and 579(c). The next regular selection board convened to consider officers for promotion to that grade and competitive category will consider the officer (if otherwise eligible), provided this removal action does not constitute the officer's second nonselection for separation purposes. If the next board does not recommend promotion, this will constitute the officer's second nonselection. If the next board recommends promotion, the officer may petition the Secretary of the Army to be granted the same DOR and position on the active duty list the officer would have had if the officer's name had not been removed from the promotion list. 2. Title 10, U.S. Code, section 571, states appointments to CW2 shall be made by the President of the United States. The appointment authority was delegated to the Secretary of Defense through Executive Order 12396(c). 3. Title 10, U.S. Code, section 579(d), states if the next selection board that considers the warrant officer for promotion under this chapter selects the warrant officer for promotion and the warrant officer is promoted, the Secretary concerned may, upon his promotion, grant him the same effective date for pay and allowances and the same DOR, and the same position on the warrant officer active duty list as the warrant officer would have had, if his name had not been so removed. 4. Title 10, U.S. Code, section 578(a), states when the report of a selection board convened under this chapter is approved by the Secretary concerned, the Secretary shall place the names of the warrant officers approved for promotion on a single promotion list for each grade (or grade and competitive category), in the order of the seniority of such officers on the warrant officer active duty list. 5. Title 10, U.S. Code, section 624, provides, in pertinent part, that under regulations prescribed by the Secretary of Defense, the appointment of an officer under this section may be delayed if a board of officers has been convened under chapter 60 of this title to review the record of the officer or substantiated adverse information about the officer that is material to the decision to appoint the officer is under review by the Secretary of Defense or the Secretary concerned. a. If no disciplinary action is taken against the officer, if the charges against the officer are withdrawn or dismissed, if the officer is not ordered removed from active duty by the Secretary concerned under chapter 60 of this title, if the officer is acquitted of the charges brought against him, or if, after a review of substantiated adverse information about the officer regarding the requirement for exemplary conduct set forth in section 3583, 5947, or 8583 of this title, as applicable, the officer is determined to be among the officers best qualified for promotion, as the case may be, then unless action to delay an appointment has also been taken, the officer shall be retained on the promotion list (including an approved all-fully-qualified-officers list, if applicable).. b. Upon promotion to the next higher grade, the officer shall have the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the active duty list as he would have had if no delay had intervened, unless the Secretary concerned determines that the officer was unqualified for promotion for any part of the delay. If the Secretary concerned makes such a determination, the Secretary concerned may adjust such date of rank, effective date of pay and allowances, and position on the active duty list as the Secretary concerned considers appropriate under the circumstances. 6. Title 10, U.S. code, section 1552 states a Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. DISCUSSION: 1. The applicant accepted appointment as a Reserve WO1 on 2 July 2014. 2. Eligibility for promotion to CW2 requires 2 years' time in grade and completion of WOBC, both of which he met. Although he was selected for promotion to CW2 in 2016 by a PSB, he was flagged and a PRB was necessary due to a CID investigation conducted in 2004. It appears he was eventually absolved of any wrongdoing and his flag was favorably removed. 3. Upon review by the Secretary of the Army and Department of Defense, the applicant was promoted to CW2 with a DOR and effective date of 30 March 2017. 4. The Chief, Officer Promotions, Special Actions, HRC, recommended granting the applicant full relief and that his date of rank and effective date be retroactive to his CW2 promotion eligibility date of 2 July 2016. 5. There is a provision of law that allows a warrant officer to petition the Secretary concerned to grant him the same effective date for pay and allowances and the same date of rank, and the same position on the warrant officer active duty list as he would have had, if his name was not removed (flagged). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170006765 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170006765 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2