SAMA-RB 19 December 2017 MEMORANDUM FOR Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20170004306 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 28 November 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by: • showing that he was promoted to chief warrant officer two, pay grade CW2 with an effective date and date of rank of 23 April 2016 • paying him all back pay and entitlements due as a result of this correction. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 19 April 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl · . Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170004306 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170004306 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______________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: 28 November 2017 DOCKET NUMBER: AR20170004306 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 effective date and date of rank (DOR) for promotion to chief warrant officer two (CW2) to 23 April 2016. 2. He states his record was referred to a promotion review board (PRB) because a DA Form 3975 (Military Police Report) dated in 2006 stated he had an assault charge. The adjudicated charge was disorderly conduct which was not displayed in the report. He contacted the Quantico Crime Records Center, where an agent explained the report never shows the adjudicated charge. If the report had not been discovered by the post promotion board screen, he believes a PRB would not have been initiated. The Secretary of the Army retained him on the promotion list; but he did not retain his DOR and incurred a loss of pay and allowances. 3. He provides: * Hearing Record, dated 4 September 2006 * District Court Judgement, dated 18 September 2006 * DA Form 3975, dated 2 October 2006 * DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 10 October 2006 * Court Order of Discharge after Suspended Imposition of Sentence, dated 12 June 2008 * PRB letter of support from spouse, dated 10 April 2016 * PRB rebuttal memorandum from applicant, dated 25 April 2016 * PRB Memorandum of Support from Battalion Commander, dated 26 April 2016 * PRB Memorandum of Support from Company Commander, dated 1 May 2016 * PRB Memorandum of Support from Brigade Commander, dated 4 May 2016 * Official photo of applicant * DA Form 268 (Report to suspend Favorable Personnel Actions (FLAG), dated 20 March 2017 CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service, the applicant accepted an appointment as a Reserve Warrant Officer (WO1). He entered active duty on the same day. 2. Order Number 417-117-WO27-181, issued by U.S. Army Human Resources Command (HRC) on 27 April 2017, announced the applicant’s promotion to CW2 with an effective date and DOR of 23 March 2017. There is no date of Senate confirmation as it is not applicable for this promotion. 3. HRC, Chief of Promotions, provided an advisory opinion on 18 May 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 (CID), the Department of the Army Inspector General (DAIG) and the Army Military Human Resource Records (AMHRR). 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 23 April 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. 4. 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 Secretary of the Army (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 23 April 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 23 April 2016. The applicant 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 effective DOR and DOR as 23 March 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, 23 April 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) AR20170006004 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170006004 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2