BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20170008144 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: 5 December 2017 DOCKET NUMBER: AR20170008144 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: * showing he was promoted to chief warrant officer two, pay grade CW2 with an effective date and date of rank of 6 June 2015 * paying him all 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: 5 December 2017 DOCKET NUMBER: AR20170008144 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 records to show he was promoted to chief warrant officer two (CW2)/pay grade W-2 with a date of rank (DOR) of 6 June 2015 with entitlement to all back pay and allowances. 2. The applicant states his promotion eligibility date (PED) for CW2 was 6 June 2015. After an arduous process and referral to a Promotion Review Board (PRB), the Secretary of the Army (SA) signed a memorandum on 19 September 2016 (sic) directing his promotion to CW2. The PRB and SA found him fully qualify for the next higher grade; however, his promotion was delayed until 20 March 2017. He concludes that his promotion to CW2 should reflect his original PED of 6 June 2015. 3. The applicant provides copies of two memoranda. CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the Regular Army from 17 June 1998 through 5 June 2013. He held military occupational specialty 31B (Military Police) and attained the rank of sergeant first class/pay grade E-7. 2. He was appointed as a Reserve warrant officer of the Army in the rank of warrant officer one (WO1)/pay grade W-1, and ordered to active duty on 6 June 2013. 3. He completed the Initial Entry Rotary Wing Aviator Course on 6 October 2014. 4. Headquarters, U.S. Army Human Resources Command (HRC), Fort Knox, KY, Order Number 079-701, paragraph 17, dated 20 March 2017, promoted the applicant to CW2 effective and with a DOR of 19 September 2016. 5. In support of his request the applicant provides the following documents. a. SA, Washington, DC, Action Memo to the Secretary of Defense, dated 26 August 2016, subject: Nomination of WO1 [Applicant] for Fiscal Year 2015 (FY15) Appointment to CW2. (1) It shows the SA noted the applicant was withheld from the FY15 CW2 Appointment Scroll (April-June) to allow for further review of his records. He also noted the applicant qualified for appointment to the next higher grade, successfully met all promotion criteria, and was eligible for promotion CW2. He further noted that promotion will not be made by the field until all promotion qualifications have been met. (2) The SA reviewed the results of the PRB and the adverse information. He determined that the applicant met the exemplary conduct standards and qualified for appointment to the next higher grade. (3) The SA recommended that the Secretary of Defense appoint the applicant to the grade of CW2. b. Headquarters, U.S. Army HRC, Fort Knox, KY, memorandum, dated 20 March 2017, subject: PRB Results (PRB AP1604-48). It shows the Chief, Department of the Army (DA) Promotions, notified the applicant that his records were referred to a DA PRB for reconsideration of his promotion status and the SA decided to retain the applicant on the promotion list. It also shows a copy of the SA memorandum, DA Form 268 (Suspension of Personnel Actions-Flag) removing the Headquarters, Department of the Army (HQDA) flag, and a copy of the PRB Results memorandum were forwarded to HRC Active Component Officer Promotions Section for processing. 6. In the processing of this case, an advisory opinion was obtained from the Chief, Active Component/Reserve Component Board Support, Officer Promotions, U.S. Army HRC, Fort Knox, KY, dated 19 July 2017. a. The advisory official found the applicant's request to adjust his CW2 DOR to 6 June 2015 has merit. b. Army Regulation 600-8-29 (Officer Promotions), Chapter 3 (Managing Promotions to First Lieutenant (1LT) and CW2), paragraph 3-4, clarifies that in the applicant's case he should have been promoted/appointed to CW2 effective and with a DOR of 6 June 2015. c. Department of Defense policies requires the Army to certify that all officers submitted for appointment/promotion meet the exemplary conduct provisions of Title 10 (Armed Forces), United States Code (10 USC), section 3583, and Army Directive 2016-26 (Screening Requirements for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below). As such, the SA is apprised of any adverse information contained in the official files maintained under the authority of HQDA. d. 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. Subsequently, a PRB was held and a recommendation was made approving the applicant for appointment to CW2. e. 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 USC based under an "unusual delay." f. Based on the fact that the applicant was not denied appointment to CW2, the advisory official recommends the applicant be granted full relief, that the effective date and DOR be retroactive to his PED of 6 June 2015 pursuant to 10 USC 742 (Rank: Warrant Officers), unless proven otherwise ineligible. He added the recommendation allows the applicant seniority on the active duty list (ADL) per Army Regulation 600-8-29 and 10 USC 742. 7. On 31 August 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity (14 days) to submit comments or a rebuttal. A response was not received from the applicant. 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 ADL he or she would have received had there been no 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 ADL. 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 (10 USC 579(d)). This authority has been delegated to the 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 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 PRB'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 ADL 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 ADL. 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 ADL as the warrant officer would have had, if his name had not been so removed. 5. Title 10, USC, section 742, shows among warrant officer grades, warrant officer grades of a higher numerical designation are senior to warrant officer grades of a lower numerical designation. Rank among warrant officers of the same grade, and DOR of warrant officers, is determined in the same manner as prescribed in section 741 of this title for officers in grades above warrant officer grades. 6. 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. 7. 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 appointed as a Reserve warrant officer of the Army in the rank of WO1, effective and with a DOR of 6 June 2013, and was immediately ordered to active duty. This established his CW2 PED as 6 June 2015. He completed the Initial Entry Rotary Wing Aviator Course on 6 October 2014. He met the 2-year time-in-grade requirement for promotion to CW2 on 6 June 2015. 2. The applicant's name was initially withheld from the FY15 CW2 Appointment Scroll to CW2 based on adverse information on file that was reviewed by an Army G1, Officer Review Board. a. A PRB was held and it recommended the applicant's appointment to CW2. b. On 26 August 2016, the SA recommended that the Secretary of Defense appoint the applicant to the grade of CW2. c. On 20 March 2017, orders promoted the applicant to CW2 on the ADL effective and with a DOR of 19 September 2016. 3. Based on the evidence of record, statutory and regulatory rules for promotion, there does not appear to be an error in the Army record with respect to the processing of the applicant's promotion to CW2. 4. By law, the Secretary concerned may, upon an officer’s 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 ADL as the warrant officer would have had if his name had not been removed from a promotion list. 5. As the applicant's case was closed favorably and he was ultimately promoted, there appears to be no barrier to adjusting his date of rank on the ADL and his CW2 promotion orders to his date of eligibility, 6 June 2015, 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) AR20170008144 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008144 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2