BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20150019000 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: 13 July 2017 DOCKET NUMBER: AR20150019000 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 issuing orders amending the effective date and date of rank for his promotion to first lieutenant to 5 July 2015 and authorizing entitlement to all back pay and allowances he may be 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: 13 July 2017 DOCKET NUMBER: AR20150019000 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 the rank of first lieutenant (1LT)/pay grade O-2 effective and with a date of rank (DOR) of 5 July 2015 instead of 23 October 2015. 2. The applicant states he completed 18 months of active duty service in the rank of second lieutenant (2LT)/pay grade O-1 and he was eligible for promotion to 1LT on 5 July 2015. However, the Department of the Army initiated suspension of favorable personnel actions (flag) against him in May 2015 based on an investigation that occurred the previous year. He was found not guilty of all the alleged specifications, the commanding general signed a DA Form 78 (Recommendation for Promotion to 1LT), and he forwarded it to the Judge Advocate General on 10 July 2015. It took until 13 November 2015 for the promotion action to be processed through the U.S. Army Human Resources Command (HRC) and signed by the Secretary of the Army. HRC backdated his promotion date to 1LT to 23 October 2015 instead of 5 July 2015. The delay in the timely processing of his promotion adversely affects him financially and in his military career with regard to assignment and promotion opportunities with his contemporaries. 3. The applicant provides copies of his promotion orders, DA Form 1059 (Service School Academic Evaluation Report), DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), and Officer Record Brief. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army in the rank of 2LT on 15 September 2013[UAu1]. He was ordered to active duty on 5 January 2014 for a period of 3 years and appointed in the Regular Army. 2. The DA Form 1059 shows he completed the Transportation Officer Leader Course on 25 April 2014. 3. Headquarters, HRC, Fort Knox, KY, Order Number 317-001, dated 13 November 2015, promoted the applicant to 1LT (O-2) effective and with a DOR of 23 October 2015. 4. In support of his request, the applicant provided a copy of a DA Form 2627 that shows the Commanding General, U.S. Army Maneuver Center of Excellence, Fort Benning, GA, found the applicant not guilty of all specifications on 24 November 2014. Item 4b (I direct the original DA Form 2627 be filed in the) is blank (i.e., no entry). 5. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, HRC, Fort Knox, KY. a. The advisory official stated that based on a review of HRC records, systems, and the governing Army regulation, the applicant's request has merit. He recommends administrative relief by adjusting the effective date and DOR for the applicant's promotion to 1LT to 5 July 2015. b. The advisory official stated: The reason for the unusual delay in appointment may have included but was not limited to an initial administrative or system(s) error that did not correctly calculate or recognize him as eligible for scroll appointment, approval and promotion. However, in his case the unusual delay in appointment was due in part to the Screening Requirement for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below, which was later packaged and released as Army Directive 2016-26, Department of Defense Instruction 1320.04 [Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation, 3 January 2014], § [section] 3583, and Deputy Chief of Staff/G1, Standard Operating Procedure. The Secretary of Defense recently approved the precedence setting adjustment of 78 officers dates of rank and effective dates for pay to the earliest allowable date Pursuant to 10 USC, § 742 [Title 10, U.S. Code, section 742] (Warrant Officer) 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. We recommend that his date of rank and effective date be retroactive to his promotion eligibility date of 5 July 2015 Pursuant to 10 USC, § 741 (Commissioned Officer) based under an "unusual delay" as it would apply to both § 741 and § 742 (unless proven otherwise ineligible). 6. On 26 January 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. A response was not received. REFERENCES: 1. Title 10, U.S. Code, section 531 (Original Appointments of Commissioned Officers), paragraph a(1), states original appointments in the grades of 2LT, 1LT, and captain in the Regular Army shall be made by the President alone. 2. Title 10, U.S. Code, section 624 (Promotions: How Made), paragraph a(2), states officers to be promoted to the grade of 1LT shall be promoted in accordance with regulations prescribed by the Secretary concerned. 3. Executive Order 13384 (Assignment of Functions Relating to Original Appointments as Commissioned Officers and Chief Warrant Officer Appointments in the Armed Forces), dated 27 July 2005, section 1, states the Secretary of Defense shall perform the functions of the President under the following provisions of Title 10, U.S. Code, section 531(a)(1), and the second sentence of Title 10, U.S. Code, section 571(b). 4. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. Chapter 3 (Managing Promotions to 1LT and Chief Warrant Officer Two), paragraph 3-1 (Rules for Computing Promotion Eligibility Date (PED) to 1LT), states the PED will be computed according to the rules in Table 3-1. Table 3-1 shows the PED to 1LT is 18 months of active duty service as a 2LT on the Active Duty List. DISCUSSION: 1. The applicant contends his records should be corrected to show he was promoted to 1LT (O-2) effective and with a DOR of 5 July 2015. 2. Records show the applicant met the eligibility criteria for promotion to 1LT on 5 July 2015. However, his promotion was delayed, in part, due to administrative reasons. 3. The evidence of record shows the applicant was exonerated of alleged misconduct; however, the processing of his promotion action was "unusually delayed." a. The Secretary of Defense recently approved the precedent-setting adjustment of officers' dates of rank and effective dates for pay to the earliest allowable date pursuant to Title 10, U.S. Code, section 742, based on an "unusual delay." b. The Chief, Officer Promotions, Special Actions, HRC, recommends adjustment of the applicant's 1LT DOR and effective date retroactive to his PED of 5 July 2015. //NOTHING FOLLOWS// [UAu1]Used data from ORB – no oath attached as evidence. ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019000 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019000 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2