BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160016647 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ _x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160016647 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his date of rank to chief warrant officer two to 25 September 2015. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting his effective date for pay to chief warrant officer two. __________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 2017 DOCKET NUMBER: AR20160016647 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 adjustment of his date of rank (DOR) and effective date for pay and allowances to chief warrant officer two (CW2) from 23 August 2016 to 25 September 2015. 2. The applicant states: a. His promotion eligibility date for CW2 was 25 September 2015; however, there was an error due to the Promotion Review Board (PRB.) b. In May 2015, the Department of the Army initiated a flag against him and determined a PRB was necessary due to his name appearing as a person of interest in a U.S. Army Criminal Investigation Command (USACIDC or CID) investigation case file in 2004. He was absolved of any wrongdoing at the end of the investigation, so it caught him by complete surprise that the issue was now being brought up again. His chain of command requested the case, reviewed it, and it was immediately clear to them that this PRB was, at worst, a mistake or, at best, the result of rigid, perhaps too rigid, policy enforcement. He had the full support of his chain of command and as expected, the PRB ended with a favorable result. c. He was selected for promotion and requests adjustment of his effective date of promotion to 25 September 2015 to enable him to maintain pace with his peers. Additionally, he recommends that the PRB use this case to highlight the need for policy reform to prevent future cases like this from becoming an issue. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant has prior enlisted service in the Regular Army from 28 September 2002 to 24 September 2013, when he was honorably discharged to accept appointment as a Reserve warrant officer (WO). 2. The applicant signed his oath of office and was appointed as a Reserve WO in the grade of WO1 on 25 September 2013. 3. A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant completed the course standards for the Warrant Officer Basic Course (WOBC) on 10 June 2014. Eligibility for promotion to CW2 required 2 years of time in grade and completion of WOBC. 4. Order Number 275-606 issued by Headquarters, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 1 October 2016, promoted him to CW2 with a DOR and effective date of 23 August 2016. 5. During the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, HRC, on 16 March 2017, wherein he stated: a. Based on a review of our records, data systems, Army Regulation  600-8-29 (Officer Promotions), and the information provided, we find that the applicant's request to adjust his DOR does have merit in part. Army Regulation 600-8-29, paragraph 3-4, clarifies that in his case, he could have been promoted/appointed to CW2 with a DOR and effective date of 25 September 2015. b. The applicant's name was initially withheld from appointment to CW2 based on adverse information on file from CID that was not made available to the initial recommending promotion authority. Subsequently, a PRB was held and a recommendation was made whereby the applicant was approved for appointment to CW2. c. The Secretary of Defense recently approved the precedent-setting adjustment of 78 officers' DORs and effective dates for pay to the earliest allowable date pursuant to Title 10, U.S. Code, based on 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. The applicant was not denied appointment to CW2; therefore, we recommend granting full relief and adjustment of his DOR and effective date retroactive to his promotion eligibility date of 25 September 2015 pursuant to Title 10, U.S. Code, section 742 (Rank Warrant Officer), based on an "unusual delay," as it should apply. 6. On 22 March 2017, a copy of the advisory opinion was forwarded to the applicant for an opportunity to respond. 7. On 28 March 2017, the applicant responded, stating he fully concurred with the advisory opinion and was hopeful the Army Board of Corrections of Military Records would adopt the opinion recommendation in whole, granting full relief based on an "unusual delay." REFERENCES: 1. Army Regulation 600-8-29 prescribes policies and procedures for officer promotions. 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 WO 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 WO will also count as active duty service. 2. Title 10, U.S. Code, section 571, states appointments to CW2 shall be made by the President of the United States. The appointment authority was delegated to the Secretary of Defense through Executive Order 12396(c). 3. Department of Defense Financial Management Regulation  7000.14-R, chapter 57, states the effective date of promotion is the date used for increases in pay and allowances for service members. DISCUSSION: 1. The applicant contends that his DOR and effective date as a CW2 should be adjusted from 23 August 2016 to 25 September 2015. 2. The evidence of record confirms the applicant accepted a commission as a Reserve WO1 on 25 September 2013. 3. Eligibility for promotion to CW2 required 2 years of time in grade and completion of WOBC, both of which he met. Although he was selected for promotion to CW2 in 2015, his name was flagged and a PRB was necessary due to a CID investigation in 2004. (The details of the CID investigation are unknown since the report of investigation is not in the applicant's records.) He was eventually absolved of any wrongdoing, but his promotion to CW2 was delayed due to the investigation. 4. HRC promoted the applicant to CW2 with a DOR and effective date of 23 August 2016. 5. The Chief, Officer Promotions, Special Actions, HRC, recommended granting the applicant full relief retroactive to his original promotion date of 25 September 2015 pursuant to the precedent-setting adjustment of 78 officers' DORs and effective dates of advancement by the Secretary of Defense. 6. The effective date of promotion is established by law under Title 10, U.S. Code, and is approved by the Secretary of Defense. This Board, acting under the authority of the Secretary of the Army, does not have the authority to change the effective date, nor does the HRC Officer Promotion Branch. 7. Since the delay in his promotion to CW2 was due to no fault on his part, the Board may recommend adjusting his DOR to CW2 to 25 September 2015, aligning him with his peer group. His effective date for pay and allowances would remain unchanged. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016647 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016647 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2