BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20170009885 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF _____x___ _____x___ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20170009885 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 to 1LT as 23 November 2016. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to adjusting his effective date of promotion to 1LT or providing him back pay. ______________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: 14 September 2017 DOCKET NUMBER: AR20170009885 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 date of rank (DOR) and effective date of promotion to first lieutenant (1LT)/O-2. 2. The applicant states his DOR to 1LT needs to be corrected to 23 November 2016. His current DOR is 2 June 2017. The delay was caused by a promotion review board (PRB), which was resolved in his favor. His DOR should be changed and he should receive all pay and entitlements effective 23 November 2016. a. He was flagged on 30 August 2016 by Headquarters, Department of the Army (HQDA), after he was identified and referred to a PRB. The PRB resolved in his favor on 9 June 2017, and his promotion eligibility was immediately restored. b. An official at the U.S. Army Human Resources Command (HRC) notified him via email that although his date of rank should have been 23 November 2016, HRC only has the authority to back-date his date of rank to 2 June 2017. 3. The applicant provides a copy of the PRB packet, email communication with HRC, and his promotion orders to 1LT. CONSIDERATION OF EVIDENCE: 1. The applicant is a graduate of the U.S. Military Academy (USMA) Class of 2015. He was appointed in the Regular Army, on 18 February 2016, in the rank of second lieutenant. 2. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 22 September 2016, shows HRC initiated a Flag on the applicant's record, effective 30 August 2016, to delay or remove him from the promotion selection list. 3. An HRC memorandum, dated 25 October 2016, subject: Delay of Promotion and Referral to a PRB, shows the applicant was notified that a post-board screening process elected to delay his promotion to 1LT because of Criminal Investigation Division (CID) Law Enforcement Report – Final – 2015CIDxxx-xxxxxx, dated 21 August 2015. He was notified the PRB would recommend one or more of the following actions to the Secretary of the Army: * that he be retained on the promotion list * that his name be removed from the promotion list 4. On 9 June 2017, the PRB notified the applicant his record was considered and the Secretary of the Army decided to retain his name on the promotion list. Along with the notification, the PRB provided him with a DA Form 268 showing his flag was removed effective 23 May 2017 and his case was closed favorably. 5. The applicant received an email from an HRC official with his promotion orders to 1LT attached. The HRC official informed him the promotion date is consistent with the date the scroll was approved, so they have no authority to promote him prior to that date. He was instructed to contact the ABCMR to request a correction to his DOR and effective date. 6. Order Number 160-703, issued on 9 June 2017 by HRC, shows the applicant was promoted to 1LT with an effective date and DOR of 2 June 2017. 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 the USMA are eligible for promotion to 1LT 18 months from USMA main graduation date. USMA Class 2015 graduation date was 23 May 2015. 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 requests correction of his DOR and effective date of promotion to 1LT. He contends his DOR should reflect 23 November 2016, and he should receive all pay and entitlements as of that effective date. 2. The evidence of record shows the applicant is a graduate of USMA Class 2015. Class 2015 graduated on 23 May 2015. The governing regulation provides he should have been eligible for promotion to 1LT on 23 November 2016, 18 months after USMA Class 2015's graduation date. 3. HRC placed a flag on the applicant's record and delayed his promotion pending a review by the PRB. The PRB closed his case favorably and the Secretary of the Army restored his promotion eligibility to 1LT on 23 May 2017. 4. The applicant received promotion orders showing 2 June 2017 as his DOR and effective date of promotion. Since the case closed favorably, his DOR should have been 23 November 2016; however, an HRC official advised him to apply for a records correction through the ABCMR in order to receive all pay and entitlements authorized, since the promotion order's DOR and effective date were a scrolling concern. 5. The effective date of promotion is established under the authority of the Secretary of Defense and this Board does not have the authority to change that date. 6. With respect to back pay, the governing law and regulation state increases in pay and allowances are based on the effective date of promotion and not the DOR. As his effective date of promotion to 1LT remains 2 June 2017, a correction of his DOR to 1LT would not be a basis for paying him back pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000160 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009885 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2