IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170009396 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 IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170009396 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 showing: * approval of his petition to be granted the same date of rank and position on the active duty list he would have had if his name had not been removed from the chief warrant officer two promotion list * his chief warrant officer two effective date of rank is 29 May 2016 He should also receive any 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. IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170009396 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 date of rank (DOR) for chief warrant officer two (CW2) to 29 May 2016. 2. The applicant states: a. his date of promotion needs to be corrected. His original promotion date was supposed to be 29 May 2016. Due to a Promotion Review Board (PRB) that decided to retain him, his promotion date reads 30 March 2017. b. the results of the PRB came back in his favor and he is being retained. The reason for the PRB was an investigation on his barracks roommate that included him only because he was the roommate; the investigation was not properly closed by U.S. Army Criminal Investigation Command (CID). c. the PRB put his career on hold for almost a year. Due to the delay, he is now behind his year group, which will potentially affect his future promotions and assignments. 3. The applicant provides: * Orders 118-361-A-4394, issued by U.S. Army Garrison (USAG), Fort Rucker, AL on 29 May 2014 * DA Forms 657-10-1 (Company Grade Plate Officer Evaluation Report (OER)), covering the periods 29 May 2014 thru 16 January 2016 and 17 January 2016 thru 20 June 2016 * a memorandum from the Acting Secretary of the Army (SA), dated 16 March 2017 * PRB results, dated 14 April 2017 * Order Number 110-009, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY on 20 April 2017 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve warrant officer on 29 May 2014, in the rank of warrant officer one (WO1). Orders 118-361-A-4394 issued by USAG, Fort Rucker, on 29 May 2014, ordered the applicant to active duty, upon successful completion of the Warrant Officer Candidate Course (WOCC), to fulfill his 6-year active duty service commitment. 2. The applicant's records were referred to a PRB for reconsideration of his promotion status with respect to his promotion to CW2. He was informed, on 14 April 2017 that the acting SA had decided to retain him on the promotion list effective 16 March 2017. The memorandum states his records were referred to a PRB under the provisions of Army Regulation 600-8-29 (Officer Promotions), paragraph 8-2. 3. Order Number 110-009, issued by HRC on 20 April 2017, shows he was promoted to CW2 with an effective date and DOR of 30 March 2017. 4. In the processing of this case, an advisory opinion was obtained on 7 August 2017 from the Chief, Active Component/Reserve Component Board Support, Officer Promotions, HRC, who was asked to determine if the applicant's DOR should be corrected. The advisory official noted and opined: a. Based on a review of the applicant's records, HRC found that his request to adjust his CW2 DOR has merit. b. His name was initially withheld from appointment to CW2 based on adverse information on file that was reviewed by an Army G1 Officer Review Board. Subsequently, a PRB was held and a recommendation was made, and he was approved for appointment to CW2. c. Because he was not denied promotion to CW2, HRC recommended he be granted full relief and his DOR and effective date be retroactive to his promotion eligibility date of 29 May 2016. 5. The applicant was provided a copy of this advisory opinion on 24 August 2017, for an opportunity to comment and/or submit a rebuttal. 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 warrant officer 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 warrant officer will also count as active duty service credit. b. Paragraph 8-1 provides that the President, or his designee, may remove the name of a warrant officer, from a list of warrant officers recommended for promotion by a warrant officer selection board (Title 10, U.S. Code, section 579(d).) This authority has been delegated to the SA for warrant officers. PRBs are used to advise the SA 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 may not be made until the report is approved by the President or his authorized designee. ….c. Paragraph 8-2 states Headquarters, Department of the Army (HQDA), will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. Among the reasons a warrant officer is referred to a PRB includes derogatory information received by HQDA but not filed in their official military personnel file. Upon receipt of such derogatory information the warrant officer concerned will be flagged by HQDA. d. If the board recommends promotion, the officer may petition the SA 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, 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 active-duty list. 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 date of rank, 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 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. 5. 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 ordered to active duty on 29 May 2014 as a WO1. By regulation his promotion eligibility date to CW2 was 29 May 2016. He was selected for promotion by a promotion board; however, his promotion was suspended based on derogatory information received by HQDA. 2. A PRB was convened to review his promotion board file. The PRB recommended his retention and the acting SA approved the recommendation fully restoring his promotion eligibility to CW2. He was subsequently promoted to CW2 with a DOR of 30 March 2017. 3. An advisory official from the U.S. Army HRC stated his CW2 DOR and effective date could be retroactive to his promotion eligibility date of 29 May 2016. 4. 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004548 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009396 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2