ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 February 2019 DOCKET NUMBER: AR20170001917 APPLICANT REQUESTS: his date of rank (DOR) for promotion to chief warrant officer two (CW2) be adjusted from 21 December 2016 to 7 May 2016. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enlisted Record Brief * Orders 101-355-A-4339, issued by U.S. Army Installation Management Command, dated 7 May 2014 * Statement of Understanding for Appointment as a Warrant Officer (WO), dated 7 May 2014 * a memorandum, subject: Appointment as a Reserve WO of the Army, dated 7 May 2014 * a memorandum, subject: Promotion Review Board (PRB) Results, Fiscal Year 2016 Promotion Eligibility to CW2, dated 16 November 2016 * DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 17 November 2016 * a memorandum, subject: PRB Results, dated 12 January 2017 * Order Number 018-702, issued by Headquarters, U. S. Army Human Resources Command (HRC), dated 18 January 2017 FACTS: 1. The applicant states: * he graduated from WO Candidate School on 7 May 2014, with a date of rank (DOR) of 7 May 2014 * in March 2016, he was notified that his promotion to CW2 was going to be reviewed by a PRB due to an Article 15 he received 10 years prior * his DOR to CW2 would have been 7 May 2016, but it was held back due to the PRB. After 9 months, he received notification that the PRB decided to retain and promote him to CW2 * he received promotion orders for CW2 with a DOR of 21 December 2016, but he believes that his DOR should be backed dated to 7 May 2016, since everything was closed favorably 2. The applicant has prior enlisted service in the Army. During his period of service as an enlisted member, he received nonjudicial punishment on 16 December 2005. His Article 15 was transferred to the restricted portion of his official military personnel file. 3. On 7 May 2014, the applicant was ordered to active duty in the rank of Warrant Officer One (WO1) for six years upon successful completion of Warrant Officer Candidate Course (WOCC). 4. A memorandum, dated 7 May 2014, shows he was appointed as a Reserve WO of the Army. Upon completion of WOCC, he was promoted to CW2 with an effective date of 7 May 2016; however, his record was record was flagged and his name was withheld from appointment to CW2 based on an Article 15 he received on 16 December 2005, for further review at a PRB. 5. A PRB convened on 16 November 2016, and the conduct of this Board resulted in the publication of a memorandum from the Deputy Chief of Chief, which states, "effective immediately, [applicant's] promotion eligibility to CW2" is restored, under the provisions of Army Regulation 600-8-29, paragraph 8-8c. 6. An order by HRC, dated 18 January 2017, shows the applicant's promotion to CW2 was restored with a DOR of 21 December 2016, 9 months after his initial selection for promotion recommendation. 7. On 27 September 2018, the HRC provided an advisory opinion, which states: a. We find that the applicant's request to adjust his CW2 DOR has merit in part. Army Regulation 600-8-29, chapter 3, clarifies that in his case, he could have been promoted/appointed to CW2 with a DOR and effective date of 7 May 2016, had it not been for an unusual delay. b. His name was initially withheld from earlier appointment based on adverse or questionable conduct identified during the post board screening process, which was not made available to the initial recommending promotion authority. Subsequently, a PRB was held, and a recommendation was made, whereby he was approved for appointment to CW2. c. He was not denied appointment to CW2; therefore in fairness, we recommend that he be granted full relief and his DOR and effective date be retroactive to his promotion eligibility date of 7 May 2016, pursuant to Title 10 U.S. Code, section 742, based under an unusual delay, unless proven otherwise eligible. 8. The applicant was provided a copy of the advisory opinion for an opportunity to respond. He did not. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance. The applicant could have been promoted to CW2 with a date of rank of 7 May 2016 in accordance with AR 600-8-29, chapter 3, were it not for the delay caused by the requirement for a PRB. As the PRB results were favorable, and the applicant was not denied appointment to CW2, the Board finds that his request to adjust his date of rank for promotion to chief warrant officer two (CW2) from 21 December 2016 to 7 May 2016 is warranted. BOARD VOTE: Member 1 Member 2 Member 3 :X :X :X Full Grant : : : Partial Grant : : : Formal Hearing Grant : : : Deny 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 changing his date of rank for promotion to chief warrant officer two (CW2) to 7 May 2016. ___________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. ADMINISTRATIVE NOTES: Not Applicable? REFERENCES 1. Army Regulation 600-8-29 (Officer Promotions), states, Headquarters, Department of the Army (DA) will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher. a. Chapter 8-8 (Board Recommendation) states, the Secretariat for DA selection boards will provide administrative support to PRBs. The boards will be conducted consistent with the provisions of DODD 1320.12 relating to communications with and deliberations by promotion boards as provided in the standing PRB MOI. The president of a PRB may recess the board when its recommendation is complete; however, the Board will not adjourn until the Secretary acts on the PRB's recommendation. b. The referral authority will review the board’s report to ensure the PRB complied with applicable guidance. Before the SA acts, the referral authority may return a case to a PRB, or direct the convening of a new PRB, to consider new evidence or to correct an error. If the adverse information that generated a PRB is unavailable for consideration, the case will be returned to the referral authority who may set aside the action. Absent substantiated new evidence, fraud, or error, a second PRB will not reconsider the same record previously considered by a PRB. 2. Title 10, USC, section 571(b) states appointments in regular CWO grades shall be made by commission by the President (as delegated to the Secretary of Defense). 3. Department of Defense (DOD) Financial Management Regulation (FMR) 7000.14-R, chapter 57, states the effective date of promotion is the date used for increases in pay and allowances for service members. 4. Title 10, USC is the Federal law governing the Armed Forces. a. Subtitle A (General Military Law), Part II (Personnel), chapter 33A (Appointment, Promotion, and Involuntary Separation and Retirement for Members on the WO ADL), section 571 (WOs: Grades), subsection (b) states: * appointments in the grade of regular WO, W-1, shall be made by warrant * appointments of regular CWO shall be made by commission by the President, and appointments (whether by warrant or commission) in the grade of regular WO, W-1, shall be made by the President b. Subtitle A, Part II, chapter 33A, section 578 (Promotions: How Made; Effective Date), states, a regular WO who is promoted is appointed in the regular grade to which promoted, and a reserve WO who is promoted is appointed in the reserve grade to which promoted. The Secretary concerned shall prescribe the date of appointment in that grade as well as the DOR. c. Subtitle E (RCs), Part II (Personnel Generally), chapter 1207 (WOs), section 12241 (WOs: Grades; Appointments, how made; Term), states: * the permanent reserve WO grades in each armed force are those prescribed for regular WO by section 571(a) * appointments in permanent reserve WO grades shall be made in the same manner as prescribed in section 571(b) * appointments as Reserves in permanent WO grades are for an indefinite term, and are held at the pleasure of the Secretary concerned d. Subtitle E, Part III (Promotion and Retention of Officers on the RASL), chapter 1405 (Promotions), section 14317 (Officers in transition to and from the active-status list or ADL), subsection (c) (Officers on a Promotion List Removed from ADL), states: * an officer who is on the active-duty list, and is on a promotion list as the result of selection for promotion by a selection board; and, * who, before being promoted, is removed from the active-duty list and placed on the RASL of the same armed force, and in the same competitive category (including a regular officer who on removal from the active-duty list is appointed as a Reserve officer and place on the reserve active-status list); * shall, under the regulations prescribed by the Secretary of Defense, be placed on an appropriate promotion list. ABCMR Record of Proceedings (cont) AR20170001917 2