BOARD DATE: 11 July 2018 DOCKET NUMBER: AR20160007812 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: 11 July 2018 DOCKET NUMBER: AR20160007812 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 amending his records to show his date of rank to chief warrant officer five as 23 July 2015 with an effective date of 23 July 2015, the date Scroll U11-15 was signed, and paying him any associated back pay and allowances 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: 11 July 2018 DOCKET NUMBER: AR20160007812 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: a. correction of his date of rank (DOR) and promotion effective date (PED) to chief warrant officer five (CW5) from 22 March 2016 to his original scroll date of 23 July 2015 and b. all back pay and allowances due as a result of this correction. 2. The applicant states: a. He was recommended for promotion to CW5 on 26 January 2015 and the recommendation was approved by the California Army National Guard (CAARNG) Federal Recognition Examining Board on 18 February 2015. State promotion orders were published on 19 February 2015 with an effective date of 18 February 2015. His promotion packet was submitted to the National Guard Bureau (NGB) for scrolling. His name was placed on Scroll Number WO11-15. b. During the scrolling process, he was unjustly and administratively removed from the scroll in June 2015 due to no fault of his own as a result of an error in the Inspector General Action Request System (IGARS) database. The scroll he was placed on was approved on 23 July 2015, but his promotion was delayed until the error in the IGARS database was reviewed. The review determined his case was incorrectly coded in the IGARS database. The entry in IGARS was corrected and he was cleared by the Director, Military Personnel Management and the CAARNG. He was advised to resubmit the promotion packet to be added to the next outgoing scroll. His name was added to the scroll approved on 22 March 2016. Promotion orders were published on 1 April 2016. 3. The applicant provides: * Headquarters, CAARNG, memorandum, dated 26 January 2015, subject: Recommendation for Promotion of Officer * NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 5 May 2014 * CAARNG Orders 50-1025, dated 19 February 2015 * Department of the Army Office of the Deputy Chief of Staff, G-1, memorandum, dated 15 June 2015, subject: ARNG Post-Board Screening * Department of the Army Office of the Inspector General letter, dated 1 September 2014 * NGB Special Orders Number 62 AR, dated 1 April 2016 * NGB memorandum, dated 1 April 2016, subject: Promotion as a Reserve Commissioned Warrant Officer of the Army * email correspondence, dated 2 September 2015, 4 September 2015, 8 September 2015, and 15 September 2015 CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the Regular Army and Maryland Army National Guard (MDARNG), the applicant was appointed as a warrant officer one in the MDARNG on 1 July 1997. He was promoted to chief warrant officer four effective 3 June 2009. 2. Headquarters, CAARNG, memorandum, dated 26 January 2015, subject: Recommendation for Promotion of Officer, recommended him for promotion to CW5. 3. His NGB Form 89, dated 18 February 2015, shows the Federal Recognition Examining Board recommended granting him Federal recognition for promotion to the grade of CW5. 4. CAARNG Orders 50-1025, dated 19 February 2015, promoted him in the State to CW5 effective 18 February 2015. 5. He provided a memorandum from the Chief, Officer Selection Board Policy Branch, Department of the Army Office of the Deputy Chief of Staff, G-1, dated 15 June 2015, stating: a. A screening of the ARNG Federal Recognition Warrant Officer List (WO11-15) resulted in unfavorable information maintained on the applicant. b. In accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), the applicant must be flagged. c. The applicant must be removed from the scroll, flagged, and the promotion delayed until the unfavorable information is adjudicated. 6. He provided a letter from the Chief, Records Screening and Oversight Division, Department of the Army Office of the Inspector General, dated 1 September 2014, stating: a. The Department of the Army Inspector General recently completed a review of the case where the applicant was named as a subject. After a thorough review, the Inspector General directed amendment of the case in the IGARS database. b. A sexual harassment allegation was coded as substantiated against the applicant in the IGARS database, but the applicant was the complainant, not the subject, in this case. Therefore, the applicant was removed as the subject, the substantiation was removed, and the case was coded as assistance. c. The IGARS database has been updated to reflect this change. 7. NGB Special Orders Number 62 AR, dated 1 April 2016, extended him Federal recognition for promotion to the grade of CW5 effective 22 March 2016. 8. During processing of this case, an advisory opinion was obtained from the Deputy Chief, Special Actions Branch, NGB. NGB recommends approval of the applicant's request. The opinion states: a. In 2014, the applicant received a letter from the Office of the Inspector General that specified an error in their records that had just been remedied. Specifically, the letter stated the applicant had been involved in a sexual harassment case and the Inspector General had incorrectly listed him as the subject of the investigation instead of the complainant. This letter also changed the status from substantiated to assistance. The applicant was subsequently recommended for promotion to CW5 on 26 January 2015, his Federal Recognition Examining Board took place on 18 February 2015, and his name was assigned to Scroll Number U11-15 on 24 February 2015. However, the applicant was removed from the scroll on 28 July 2015, a week after the scroll had been signed by the Secretary of Defense (dated 23 July 2015). The applicant's promotion packet was returned without action to the State. Then, the applicant was notified by NGB on 2 September 2015 that the record error was being tracked as cleared and that he should pursue resubmission of his packet. This eventually resulted in his promotion on Scroll Number U02-16, dated 22 March 2016. b. Although the applicant was involved with an Inspector General case earlier in his career, records reflect that his involvement was as the complainant and not as the subject. These listed errors in IGARS were remedied nearly 5 months before his Federal Recognition Examining Board and 10 months prior to Scroll Number U11-15's signing. The error that caused the delay was no fault of the applicant and was firmly a human error when entering data into IGARS. Additionally, the evidence shows the applicant's name was present on Scroll Number U11-15 at the time of signature by the Secretary of Defense and was only later redacted. For these reasons, NGB recommends full relief of the applicant's request for adjustment of his DOR and PED with back pay to align with Scroll Number U11-15. c. The NGB, Department of the Army Officer Policy Branch, and CAARNG concur with this recommendation. 9. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States and the U.S. Army Reserve and warrant officers of the U.S. Army Reserve. This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures for processing selection board recommendations. Paragraph 4-18 (DOR and Effective Date of Promotion after an Involuntary Delay) provides that for warrant officers (including commissioned warrant officers), the DOR and effective date may not be earlier than the date of the promotion memorandum. That is unless the officer concerned obtains correction of his or her records from the Army Board for Correction of Military Records. 2. Title 10, U.S. Code, section 14308(f), states the effective date of promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date in which such Federal recognition in that grade is so extended. 3. Authority granted to the Secretaries of the Military Departments in Secretary of Defense memorandum, dated 9 December 1982, subject: Redelegation of Authority under Executive Order 12396, to appoint officers under Title 10, U.S. Code, section 624, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation of the President's authority to appoint military officers below the Secretary of Defense. All military officer appointments under Title 10, U.S. Code, section 12203, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005 shall also be submitted to the Secretary of Defense. DISCUSSION: 1. The applicant requests correction of his DOR and PED to CW5 to his original scroll date of 23 July 2015 with associated back pay. He contends he should have been promoted to CW5 on his original scroll date because his promotion was delayed due to an administrative processing error present in IGARS, which was no fault of his own. 2. The evidence of record shows he was initially promoted to CW5 by the CAARNG effective 15 February 2015. However, he was removed from the scroll on 28 July 2015 due to unfavorable information maintained against him in IGARS. He was subsequently promoted to CW5 effective 22 March 2016. 3. NGB indicates he was originally placed on Scroll Number U11-15, which was signed by the Secretary of Defense on 23 July 2015. He was removed from the 23 July 2015 promotion scroll pending an investigation determination. The investigation was closed favorably. 4. His records show he was granted Federal recognition for promotion to CW5 with an effective date and DOR of 22 March 2016. 5. Army Regulation 135-155 provides that the DOR and effective date of promotion following an involuntary delay cannot be earlier than the date of the promotion memorandum. In this case, Scroll Number U11-15 was signed by the Secretary of Defense on 23 July 2015. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007812 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007812 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2