BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20170007040 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: AR20170007040 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. reinstating him on the initial FY14 CW5 warrant officer promotion ADL in the order of seniority as prescribed by law and regulation and then determining his DOR and effective DOR; b. issuing him a document correcting his CW5 effective DOR and DOR based on the FY14 CW5 promotion ADL; and c. 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: AR20170007040 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 correction of his records to show he was promoted to chief warrant officer five (CW5)/pay grade W-5 with a date of rank (DOR) of 1 June 2015 with entitlement to all back pay and allowances associated with his requested correction. 2. The applicant states his records were reviewed by the Fiscal Year 2014 (FY14) CW5 Promotion Selection Board (PSB) and he was selected for promotion. His records were then referred to a Promotion Review Board (PRB) for reconsideration of his promotion status and his promotion was denied. a. He states his records were then reviewed by the FY15 CW5 PSB and he was selected for promotion. Once again, his records were referred to a PRB for reconsideration of his promotion status. However, he then had evidence to submit to the PRB that he did not have at the time of the first PRB. As a result, he was recommended for promotion and promoted to CW5 on 26 October 2015. b. He concludes, if he had the exculpatory evidence pertaining to the adverse action at the time of the first PRB, he would have been promoted on 1 June 2015. 3. The applicant provides copies of four memoranda and his promotion order. CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the Regular Army from 17 June 1993 through 8 June 2000. He held military occupational specialty 74C (Telecommunications Center Operator) and he attained the rank of staff sergeant/pay grade E-6. 2. He was appointed as a Reserve warrant officer of the Army, in the rank of warrant officer one/pay grade W-1, in specialty 250N (Network Management Technician), and he was ordered to active duty on 9 June 2000. 3. The applicant was appointed in the Regular Army on 11 November 2005. 4. He attained the rank of chief warrant officer four (W-4) on 1 July 2010. 5. Headquarters, U.S. Army Human Resources Command (HRC), Fort Knox, KY, Order Number 065-003, paragraph 16, dated 6 March 2017, promoted the applicant to CW5 effective and with a DOR of 26 October 2015. 6. In support of his request the applicant provides the following documents. a. Secretary of the Army, Washington, DC, memorandum, to the Deputy Chief of Staff, G-1, dated 25 February 2015, subject: PRB (AP1412-03), FY14 CW5, Army PSB. It shows the Secretary of the Army directed the immediate removal of the applicant from the FY14 CW5 Army Promotion Selection List under the provisions of (UP) Title 10 (Armed Forces), United States Code (USC), section 579(b) (10 USC 579(b)) and Army Regulation (AR) 600-8-29 (Officer Promotions), paragraph 8-1b. b. Headquarters, U.S. Army HRC, Fort Knox, KY, memorandum, dated 27 February 2015, subject: PRB Results (PRB AP1412-03). It shows the Chief, Department of the Army (DA) Promotions, notified the applicant that his records were referred to a DA PRB for reconsideration of his promotion status and the Secretary of the Army decided to remove him from the promotion list. (1) He was advised that an officer who is removed from the promotion list under 10 USC 629 continues to be eligible for consideration for promotion. However, if such officer is not recommended for promotion by the next regular PSB, he/she shall be considered to have twice failed selection for promotion. (2) It also shows a copy of the Secretary of the Army decision memorandum, DA Form 268 (Suspension of Personnel Actions-Flag) removing the Headquarters, Department of the Army (HQDA) flag, and a copy of the PRB Results memorandum were forwarded to the HRC Active Component Officer Promotions Section for processing. c. Secretary of the Army, Washington, DC, memorandum to the Deputy Chief of Staff, G-1, dated 10 January 2017, subject: PRB (AP1604-38), FY15 CW5, Technical Services PSB. It shows the Secretary of the Army directed the applicant be retained on the FY15 CW5 Technical Services Promotion Selection List UP AR 600-8-29, paragraph 8-8c. d. Headquarters, U.S. Army HRC, Fort Knox, KY, memorandum, dated 21 February 2017, subject: PRB Results (AP1604-38). It shows the Chief, DA Promotions, notified the applicant that his records were referred to a DA PRB for reconsideration of his promotion status and the Secretary of the Army decided to retain him on the promotion list. (1) It also shows a copy of the Secretary of the Army memorandum, DA Form 268 removing the HQDA flag, and a copy of the PRB Results memorandum were forwarded to the HRC Active Component Officer Promotions Section for processing. (2) It further shows a copy of the Secretary of the Army's decision will be filed in his official military personnel file (OMPF). 7. In the processing of this case, an advisory opinion was obtained from the Chief, Active Component/Reserve Component Board Support, Officer Promotions, U.S. Army HRC, Fort Knox, KY, dated 8 August 2017. a. The advisory official found the applicant's request to adjust his CW5 DOR has merit based on his removal from the FY14 CW5 promotion list pursuant to 10 USC. However, the official did not provide a specific date for promotion or an effective DOR. b. The advisory official states her office and HRC do not have the authority to question, overrule, or overturn the Secretary of the Army's previous decision to remove the applicant UP 10 USC 579(b) and AR 600-8-29, Chapter 8 (PRB), paragraph 8-1b. The advisory official recommends the Board contact the Secretary of the Army for any compromise or adjustment for relief as it relates to reinstatement and promotion under the criteria of the FY14 CW5 promotion list. c. The advisory official also states that upon receipt of an official directive to reinstate and promote the applicant to CW5, HRC will take the necessary action to correct his records and notify the Defense Finance and Accounting Service concerning any associated back pay and allowances he may be due. 8. On 6 September 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. 9. On 13 September 2017, the applicant provided information he had previously provided in his application to the PRB. He added that he has an Article 15 in the restricted folder of his OMPF, which caused his promotion to be delayed until the results of a PRB. Since he did not have the evidence to prove the Article 15 was an injustice, the FY14 PRB recommended "do not promote to CW5, but retain as a CW4." When he was selected for CW5 by the FY15 CW5 PSB, the Article 15 was still in his OMPF. However, this time his rebuttal to the PRB had the right evidence to show that the Article 15 should have never occurred. His accusers recanted and admitted that they had lied about everything that he was accused of. The PRB recommended him for promotion to CW5. He adds that, if he had the evidence for the FY14 PRB, the results would have been to promote him instead of retaining him as a CW4. Therefore, his DOR should be changed from 26 October 2015 to 1 June 2015. REFERENCES: 1. Title 10, USC, section 742, shows among warrant officer grades, warrant officer grades of a higher numerical designation are senior to warrant officer grades of a lower numerical designation. Rank among warrant officers of the same grade, and DOR of warrant officers, is determined in the same manner as prescribed in section 741 of this title for officers in grades above warrant officer grades. 2. AR 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list (ADL). Chapter 8 shows in: a. 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)). 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. 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 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 ADL the officer would have had if the officer's name had not been removed from the promotion list. If the next selection board that considers an officer in a grade below colonel does not recommend the officer for promotion, or if the officer's name is again removed (either from the report of the selection board or from the promotion list), or, in the case of promotion to grades above captain, the Senate does not give its advice and consent to the promotion, the officer will be considered for all purposes to have twice failed selection for promotion. 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 ADL as the warrant officer would have had, if his name had not been so removed. 4. Title 10, USC, 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 ADL. 5. 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the SA, acting through the ABCMR. DISCUSSION: 1. The applicant was promoted to CW4 (W-4) on 1 July 2010. 2. The applicant was initially selected for promotion to CW5 by the FY14 CW5 PSB. A PRB (AP1412-03) reconsidered his promotion status and the Secretary of the Army decided to remove him from the promotion list based on derogatory information filed in his OMPF. 3. He was then selected for promotion to CW5 by the FY15 CW5 PSB and his record was again referred to a PRB. a. He submitted exculpatory evidence related to an Article 15 in his OMPF to the PRB. (He did not have the evidence at the time of the first PRB.) The PRB (1604-38) recommended the applicant be retained on the CW5 promotion list. b. On 10 January 2017, the Secretary of the Army directed the applicant be retained on the FY15 CW5 Technical Services Promotion Selection List. c. On 6 March 2017, orders promoted the applicant to CW5 effective and with a DOR of 26 October 2015. 4. The evidence of record shows, in pertinent part, 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. a. There is no evidence of record that the applicant submitted exculpatory evidence to the PRB following his selection for promotion by the FY14 CW5 PSB. b. The evidence of record shows that, upon the submission of exculpatory evidence to the PRB following his selection for promotion by the FY15 CW5 PSB, the PRB recommended and the Secretary of the Army directed the applicant be retained on the promotion selection list. c. The HRC advisory official found the applicant's request to adjust his CW5 DOR has merit based on his removal from the FY14 CW5 promotion list. The official did not provide the applicant's DOR or an effective DOR. 5. There is a provision of law that allows a warrant officer to petition the SA to grant him the same effective date for pay and allowances and the same DOR, and the same position on the warrant officer ADL as he would have had, if his name was not removed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170007040 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170007040 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2