BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20170009399 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: 16 January 2018 DOCKET NUMBER: AR20170009399 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 he was promoted to chief warrant officer two, pay grade CW2 with an effective date and date of rank of 2 July 2016 * paying him all back pay and entitlements due as a result of this correction __________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: 16 January 2018 DOCKET NUMBER: AR20170009399 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) and effective DOR for promotion to chief warrant officer two (CW2) from 6 April 2017 to 2 July 2016. 2. He states he was referred to a promotion review board (PRB) based on two military police (MP) reports from 2006 and 2008. Both reports were supposed to be closed with no further action but were left open due to no fault of his own. Based on the MP reports, his promotion was delayed nine months. He opines that if the MP reports were closed properly, the PRB would not have been initiated. However, after reviewing his case, the PRB found in favor of his appeal and he was promoted on 6 April 2017. 3. He provides: * Support Statement * Memorandum, subject: PRB AP 1609-03, Fiscal Year (FY) 2016 Promotion Eligibility to CW2, dated 8 March 2017 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 14 April 2017 * Memorandum, subject: PRB Results (PRB AP1609-03), dated 17 April 2017 CONSIDERATION OF EVIDENCE: 1. After having prior enlisted service, the applicant was honorably discharged on 1 July 2014 to accept an appointment as a Reserve Warrant Officer (WO1) the following day. 2. A DA Form 268, dated 14 April 2017, shows effective 8 March 2017, a flag was removed on the applicant. The removal action was based on the "Case Closed Favorably." 3. A memorandum, subject: PRB AP 1609-03, FY 2016 Promotion Eligibility to CW2, dated 8 March 2017, shows the applicant's eligibility for promotion to CW2 was restored. 4. In a memorandum, subject: PRB Results (PRB AP1609-03), dated 17 April 2017, the Chief, Department of the Army Promotions, U.S. Army Human Resources Command (HRC) stated that the Secretary of the Army (SA) decided to retain the applicant on the promotion list. 5. The applicant provides a supporting statement from his former first sergeant in Bamberg, Germany who speaks highly of the applicant's dedication as a noncommissioned officer and work ethics. He stated the applicant was apprehended by the German Police for suspicion of driving under the influence. He recalls the applicant had been drinking that night, but he was not operating his vehicle, which was parked in front of his quarters. He states the applicant and his wife were having an argument and the applicant decided to sleep in his vehicle that night instead of allowing things to escalate. It was during this time that the German Police notice the applicant asleep in his vehicle and assumed he had driven himself to his quarters and parked, which was not the case. He states the applicant was punished for this incident. 6. Order Number 417-117-WO27-177, issued by HRC on 27 April 2017, announced the applicant's promotion to CW2 with an effective date and a DOR of 6 April 2017. 7. HRC, Chief of Promotions, provided an advisory opinion on 7 August 2017. The advisory official found the applicant's request had merit based on the following information: a. Department of Defense policies requires the Army to certify that all officers submitted for promotion meet the exemplary conduct provisions of Title 10 U.S. Code, section 3583. In order for the Secretary of the Army, or his designated representative, to certify exemplary conduct, he or she must be apprised of any adverse information contained in the official files maintained by the United States Army Criminal Investigation Command, the Department of the Army Inspector General, and the Army Military Human Resource Records. b. The applicant’s name was initially withheld from appointment to CW2 based on adverse information on file that was reviewed by an Army G1, Officer Review Board (ORB) which was not made available to the initial recommending promotion authority. Subsequently, a PRB recommended approval of the applicant’s appointment to CW2. c. The Secretary of Defense recently approved the precedence setting adjustment of 78 officers' DORs and effective dates for pay to the earliest allowable date pursuant to Title 10, U.S. Code based under an "unusual delay" as reviewed by the Army Office of the Judge Advocate General and the Army Office of the General Counsel with no legal objections. d. Because the applicant was not denied appointment to CW2, the Officer Promotions Branch recommends granting full relief. It was recommended his DOR and effective date be retroactive to his promotion eligibility date of 2 July 2016 pursuant to Title10, U.S. Code, section 742 based under an "unusual delay" as it should apply (unless proven otherwise ineligible). This recommendation allows the officer's seniority on the active duty list per Army Regulation 600-8-29 (Officer Promotions) and section 742. 8. The applicant was provided a copy of this advisory opinion, to provide him an opportunity to comment and/or submit a rebuttal. However, no response was received. REFERENCES: 1. Army Regulation 600-8-29 prescribes policies and procedures for officer promotions. a. Paragraph 1-21 provides instructions concerning DOR and effective DOR for officers and warrant officers who have a delay in promotion. When an officer's promotion suspense is ended favorably and he or she is exonerated of any wrongdoing, or a determination is otherwise made that the officer was qualified for promotion during the entire period of delay, the officer will be promoted with the active DOR (for pay and allowances), and position on the active duty list he or she would have received had there been to delay. The active DOR and effective date may be earlier than the date of the actual order. b. 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. c. 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. d. Paragraph 8-2 states Headquarters, Department of the Army (HQDA) will continuously review promotion lists to ensure that no officers are 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. If the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. Upon receipt of such derogatory information the warrant officer concerned will be flagged by HQDA. e. Paragraph 8-8c states the promotion review board's recommendation is only advisory to the SA. The SA has the option to remove, retain or direct other appropriate action. f. If the board recommends promotion, the officer may petition the SA to be granted the same active 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(b), states appointments in regular warrant officer grades shall be made by commission by the President (as delegated to the Secretary of Defense). 3. 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. 4. 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. 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 commissioned a Reserve WO1 on 2 July 2014 and entered active duty that same day. He met the time in grade requirements and appears to have been fully eligible for promotion to CW2 on 2 July 2016. He was selected by a promotion selection board to CW2 and his name was added to the selection list. However, due to adverse information found during a review of his records, he was flagged. 2. A PRB met and recommended to the SA that the applicant be retained on the promotion list. The flag was removed and promotion orders were published showing his DOR and effective DOR to CW2 as 6 April 2017. There appears to be no statutory or regulatory error concerning his delayed promotion. 3. By law, the Secretary concerned may, upon an officer's 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. As the applicant’s case was closed favorably and he was ultimately promoted, his name could be entered on the active duty list and his CW2 promotion orders adjusted to his date of eligibility, 2 July 2016, with entitlement to back pay and allowances. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170009399 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009399 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2