BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170009884 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: 7 November 2017 DOCKET NUMBER: AR20170009884 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 his date of rank (DOR) for promotion to 1LT as 9 November 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. BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170009884 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 his date of rank (DOR) to first lieutenant (1LT) as 8 November 2016 instead of 2 June 2017. 2. The applicant states: a. His automatic promotion to 1LT was delayed because of a report that was left open and unsigned by his then company commander. Due to the report being left unsigned, it showed as if he was under a current investigation on the date he would have been promoted from second lieutenant (2LT) to 1LT. He underwent a Promotion Review Board (PRB) due to the error. b. The PRB decided favorably to retain him and the Secretary of the Army (SECARMY) approved his promotion to 1LT. Had his previous company commander signed the official report for the inquiry that was conducted at that time, his promotion to 1LT would have never been delayed, and he would not have been flagged by Headquarters, Department of the Army (HQDA). The inquiry by his then company commander resulted in no punishment or reprimand. 3. The applicant provides: * a memorandum from The Adjutant General, U.S. Army Human Resources Command (HRC), dated 27 December 2016, subject: Delay in Promotion and Referral to a PRB * memorandum from a Case Manager, Officer Review Boards, Officer Promotions, Special Actions, HRC, dated 9 June 2017, subject: PRB Results (PRB AP1703-21) * Order Number 160-703, issued by HRC on 9 June 2017 CONSIDERATION OF EVIDENCE: 1.  Orders 110-002, issued by Headquarters, U.S. Army Cadet Command, on 20 April 2015, show the applicant was ordered to active duty for a period of 4 years effective upon his appointment in the U.S. Army Reserve (USAR). 2.  The applicant was appointed as a Reserve commissioned officer of the Army on 9 May 2015. 3. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 28 September 2016, shows the applicant was flagged by HQDA for "delay of or removal from selection list," effective 30 August 2016. 4. The applicant was notified about his promotion delay on 27 December 2016, as well as his referral to a PRB. 5. The SECARMY restored his promotion eligibility to 1LT on 23 May 2017. 6. The applicant was notified of the PRB results on 9 June 2017 and that the SECARMY decided to retain him on the promotion list. 7. Order Number 160-703, issued by HRC on 9 June 2017, promoted him to 1LT with an effective date and DOR of 2 June 2017. 8.  In the processing of this case, an advisory opinion was obtained on 8 August 2017 from the Chief, Active Component/Reserve Component Board Support, Officer Promotions, HRC, who was asked to determine if the applicant's 1LT DOR should be corrected. The advisory official noted and opined: a.  Based on a review of HRC records; systems; Title 10, U.S. Code; Army Regulation 600-8-29 (Officer Promotions); and the information provided, they found his request to adjust his DOR to have merit. Army Regulation 600-8-29, Table 3-1, affirms that in his case, he should have been promoted to 1LT on 8 November 2016. b. The reason for the unusual delay in appointment may have included, but may not have been limited to: (1) incorrect entry data during assessment on Active Duty List (ADL) (2) an initial administrative or system(s) error that did not correctly calculate or recognize him as eligible for scroll appointment, approval, and promotion; (3) a delay due in part to the screening requirement for adverse and reportable information for promotion and Federal recognition to colonel and below, which was later packaged and released as Army Directive 2016-26 (Screening Requirements for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below); Department of Defense Instruction 1320.04 (Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation); Title 10, U.S. Code, section 3583 (Requirement of Exemplary Conduct); and Deputy Chief of Staff/G1, Standard Operating Procedure. 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 Department of the Army Office of the Judge Advocate General and the Department of the Army Office of the General Counsel with no legal objections. d. HRC recommends granting full relief and adjusting his DOR and effective date retroactive to his promotion eligibility date of 8 November 2016 pursuant to Title 10, U.S. Code, section 741 (Rank Commissioned Officer), based on an "unusual delay" as it would apply (unless proven otherwise ineligible). 9. The applicant was provided a copy of this advisory opinion on 12 September 2017, for an opportunity to comment and/or submit a rebuttal. However, he did not respond. REFERENCES: 1. Army Directive 2016-26 (Screening Requirements for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below) provides procedures for screening and reviewing adverse and reportable information for promotion and Federal recognition to the grades of colonel and below to ensure the Army complies with governing law and policy, as outlined in Title 10, U.S. Code (USC), section 3583 (reference 1a) and Department of Defense (DOD) Instruction 1320.04 (reference 1b). This directive also adds or revises related policies for the promotion and separation of Army officers. a. When considering a Secretary of Defense appointment to the next higher grade, the Secretary of the Army may exempt adverse information considered during an earlier Secretary of Defense appointment to the next higher grade. b. A post-board screening is defined as a review of official records to ascertain any adverse and reportable information concerning an officer recommended for promotion to the next higher grade. A post-board screening will include, but is not limited to, information filed at U.S. Army Criminal Investigation Command, the Department of the Army Inspector General, and the restricted portion of the Army Military Human Resource Record. The Director of Military Personnel Management is responsible for initiating a post-board screening. c. A board convened at Headquarters, Department of the Army will review any derogatory information from the post-board screening and advise the Deputy Chief of Staff, G-1 or designee (normally the Director of Military Personnel Management (DMPM)) whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. An officer with adverse or reportable information that might reasonably and materially affect a promotion recommendation may not meet exemplary conduct requirements for promotion and may be recommended for a delay in promotion and referred to a promotion review board. 2. Army Regulation 600-8-29 (Officer Promotions) provides for the managing of officer promotions. a. Table 3-1 states 2LTs who are graduates of ROTC are eligible for promotion to 1LT the earlier date between 18 months active Federal commissioned service, or the day prior to the 2nd anniversary of the 2LT DOR. b. Paragraph 8-1 provides that the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board (10 USC 629(a)). This authority has been delegated to the Secretary of the Army. PRBs are used to advise the Secretary of the Army 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. 3. DOD 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. 4. Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject: Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005, based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers. DISCUSSION: 1. The applicant accepted a commissioned and was ordered to active duty as a 2LT on 9 May 2015. 2. The applicant completed 18 months of commissioned service on 9 November 2016. HRC opined that, if not for an unusual delay, the applicant's effective date and DOR would have been 8 November 2016, which is about the same date he reached 18 months of active Federal commissioned service. 3. The effective date of promotion is established under law by Title 10, U.S. Code, and is approved by the Secretary of Defense. In its advisory opinion, HRC noted that 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." 4. The applicant was not one of the 78 officers affected by the Secretary of Defense's action, and there is no evidence the Secretary of Defense intended that his action related to those 78 officers would set precedent for the Service Secretaries to grant relief in similar cases. 5. The effective date of promotion is established under law by 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. However, for administrative purposes, such as time in grade for promotion consideration, this Board may adjust an officer's DOR. Such an adjustment does not affect the effective date of promotion for the purpose of 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) AR20160004548 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002269 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2