ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 February 2020 DOCKET NUMBER: AR20170007042 APPLICANT REQUESTS: Correction of his record to show his Date of Rank (DOR) of promotion to the rank/grade of captain (CPT) as 17 August 2016, in lieu of, 21 March 2017. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personnel division tracker * Memorandum, Subject: Applicant Promotion Packet (NOTE: This DRAFT is authorized for use until staffing is completed), dated 25 May 2016 * Special Orders (SO) Number 1XX, dated 15 September 20XX * Memorandum, Subject: Promotion as a reserve Commissioned Officer of the Army, dated 5 April 2017 * Special Orders (SO) Number 6X, dated X April XXX FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states Chief Warrant Officer three L- -G- of the Iowa Army National Guard (IAARNG) submitted his promotion packet on 24 November 2015, the National Guard Bureau (NGB) approved and placed him on scroll P06-1 on 29 January 2016. The NGB removed him from scroll P06-16 on 4 April 2016 due to possible derogatory information and RWOA (unknown acronym) to the State on 26 May 2016. The NGB directed the IAARNG Adjutant General to submit an additional recommendation for promotion. The State resubmitted with memorandum on 23 June 2016. The NGB again approved and placed him on scroll PO1-17 which was approved/signed effective 21 March 2017. The NGB was working of [sic] draft policy and should not have removed him from scroll P06-16, until directed by Directorate of Manpower and Personnel Management (DMPM). He never entered the officer review board process. If the NGB had not removed him from scroll P06-16, his DOR would be 17 August 2016. 3. A review of the applicant’s official records show the following on: a. On 14 August 2011, the applicant was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O-1 in the IAARNG and executed an oath of office. He remains in the ARNG. b. On 25 February 2013, Orders Number 056-03XX, issued by the Office of the Adjutant General, promoted the applicant to the rank/grade of first lieutenant (1LT)/O-2, effective on 14 February 201X. c. On 5 April 2017, SO Number 65, issued by the NGB, extended Federal Recognition and promoted the applicant to the rank of CPT, effective on 21 March 2017. 4. The applicant provides: a. Personnel division tracker showing the processing of his promotion packet with subsequent selection and placement on scroll P06-16. b. Memorandum, Subject: Applicant Promotion Packet (NOTE: This DRAFT is authorized for use until staffing is completed) wherein the NGB returned the applicant’s promotion packet to the State without action due to adverse information (2004 unnamed civil conviction) in the applicant’s official records. c. SO Number XX1, issued by the NGB, extended Federal Recognition to the applicant with a DOR for promotion to CPT on 17 August 201X. d. Memorandum, Subject: Promotion as a Reserve Commissioned Officer of the Army showing the applicant was promoted to the rank of CPT effective on 21 March 2017. 5. On 2 October 2019, the NGB reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Special Actions Branch opined that: a. The applicant and the IAARNG provided transaction logs from the Federal Recognition tracker system that shows the processing timeline for his promotion. The timeline does coincide with his account of the processing. The records do show that he was assigned to a scroll and subsequently removed. The applicant states that the returning of this action was due to the suitability screening process which he states was still in the draft stage and should not have been applied to his packet. The applicant and his State do not dispute the possible derogatory information, but they contend that it should not have been used in his promotion process. b. On 18 July 2016, Army Directive 2016-26 (Screening Requirement for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below) was published, this policy was the guidance that was utilized by the NGB Federal Recognition office. Paragraph 5 of this directive outlines the procedure that NGB was required to follow to obtain Federal Recognition for ARNG Soldiers. The process that was detail by the applicant’s case is in accordance with the guidance outlined in the directive, and since the directive was effective immediately the NGB Federal Recognition office was obligated to apply the guidance to his promotion determination. Due to this, the applicant’s claim that he was considered under draft policy is not accurate and should not be considered. c. Although the applicant’s contention that he should not have been considered under Army Directive 2016-26 was inaccurate, his belief that he should have been promoted on the P06-16 is correct. Per Department of Defense Instructions (DODI) 1320.04 (Military Officer Actions Requiring Presidential, Secretary of Defense, Or Under Secretary of Defense for Personnel and Readiness Approval Or Senate Confirmation) paragraph 1-a, 2-a (Referenced in Army Directive 2016-26), adverse information does not include information previously considered by the Senate pursuant to an earlier nomination of the officer. In 2010, the applicant was granted a waiver for his civil conviction so that he could attend Officer Candidate School. Later, he received Federal Recognition to both 2LT and 1LT, therefore his adverse information had been fully adjudicated at the time he was selected for CPT. His removal at the time was erroneous considering he was allowed appointment and promotion previously. d. It is the recommendation of this office that the applicant receive full-relief. While he was subject to the 2016 Army Directive, he should not have been removed from the scroll since his conviction was known to the Army and had been waived by the NGB. It is recommended that his DOR and effective date be adjusted to 17 August 2016. The NGB Federal Recognition and suitability officer were consulted on this recommendation. The IAARNG concurs with this recommendation. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 7. DODI 1320.04 enclosure 4 states adverse information is any substantiated adverse finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature. To be credible, the information must be resolved and supported by a preponderance of the evidence. To be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual. 8. National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions): a. Paragraph 2-9(b) (Waiver) states applicant’s with a record of prior conviction will require a waiver from the Chief, NGB. Paragraph 2-10 states applicant’s requiring waivers will not be permitted to appear before a Federal Recognition Board prior to waiver approval. b. Paragraph 8-8 (Minimum years of promotion service) states to be promoted from 1LT to CPT a member must complete a minimum of 2 years in the lower grade to be considered for promotion and Federal Recognition. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the findings and recommendations from the NGB advisory opinion, the Board concluded there was an error which impacted the applicant’s date of rank to CPT which should be corrected. As a result, the Board recommended adjusting the date of rank to CPT as requested. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 Army records of the individual concerned be corrected by amending the applicant’s date of rank and effective date of promotion to CPT to read “17 August 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. DODI 1320.04 (Military Officer Actions Requiring Presidential, Secretary of Defense, Or Under Secretary of Defense for Personnel and Readiness Approval Or Senate Confirmation) enclosure 4 states adverse information is any substantiated adverse finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature. To be credible, the information must be resolved and supported by a preponderance of the evidence. To be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual. 3. National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions): a. Paragraph 2-9(b) (Waiver) states applicants with a record of prior conviction will require a waiver from the Chief, NGB. Paragraph 2-10 states applicant’s requiring waivers will not be permitted to appear before a Federal Recognition Board prior to waiver approval. b. Paragraph 8-8 (Minimum years of promotion service) states to be promoted from 1LT to CPT a member must complete a minimum of 2 years in the lower grade to be considered for promotion and Federal Recognition. //NOTHING FOLLOWS//