IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20170014333 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X X: :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20170014333 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, in effect, his date of rank (DOR) and effective date for promotion to first lieutenant (1LT) be changed to his original promotion eligibility date for 1LT. 2. The applicant states his record was recently reviewed by a Promotion Review Board (PRB). 3. The applicant provides U.S. Army Human Resources Command (HRC) Order Number 255-701, dated 12 September 2017. CONSIDERATION OF EVIDENCE: 1. On 18 November 2009, the applicant enlisted in the U.S. Army Reserve (USAR) as a cadet. 2. On 10 May 2013, the applicant was released from the Army Reserve Officer Training Corps (ROTC) Control Group (ROTC). On 11 May 2013, the applicant was appointed a Reserve commissioned officer in the grade of second lieutenant (2LT) in the Army of the United States. He was ordered to active duty effective 1 October 2013. 3. On 1 October 2013, the applicant was appointed a 2LT in the Regular Army in the Quartermaster Corps (QM) Branch. 4. On 24 April 2014, the applicant completed the QM Basic Officer Leader Course. 5. A memorandum, dated 26 June 2017, subject: PRB AP1609-11, Fiscal Year 2015 Promotion Eligibility to 1LT, signed by the acting Secretary of the Army (SA), restored the applicant's promotion eligibility to 1LT under the provisions of Army Regulation (AR) 600-8-29, paragraph 8-8c. 6. A memorandum, dated 11 September 2017, subject: Promotion Review Board Results (PRB AP1609-11), from HRC stated under the provisions of AR 600-8-29 the applicant's records were referred to a PRB for reconsideration of his promotion status. The SA decided to RETAIN the applicant on the promotion list. HRC forwarded the SA's decision memorandum, the DA 268 (Report to Suspend Favorable Personnel Actions) removing the Headquarters, Department of the Army (HQDA) (F) flag, and a copy of this memorandum to the HRC Active Component Officer Promotions Section for processing. 7. HRC Order Number 255-701, dated 12 September 2017, promoted the applicant to 1LT with a DOR and effective date of 9 August 2017. 8. On 14 February 2018, an advisory opinion was received from HRC stating the applicant's request to adjust his DOR had merit. a. The applicant could have been promoted to 1LT on 1 April 2015. b. The reason for the unusual delay in appointment may have included but may not have been limited to (a) incorrect entry data during assessment on the Active Duty List (AOL) (b) an initial administrative or system(s) error that did not correctly calculate or recognize him as eligible for scroll appointment, approval and promotion (c) 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, Department of Defense Instruction 1320.04, §3583 and Deputy Chief of Staff/G1, Standard Operating Procedure. c. The Secretary of Defense recently approved the precedence setting adjustment of 78 officers dates of ranks and effective dates for pay to the earliest allowable date pursuant to Title 10 U.S. Code, section 742 (10 USC 742) (Warrant Officer) 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. The applicant was not denied promotion to 1LT. HRC recommends that the applicant's DOR and effective date be retroactive to his promotion eligibility date of 1 April 2015, pursuant to 10 USC 741(Commissioned Officer) based under an "unusual delay'' as it would apply to both sections 741 and 742 (unless proven otherwise ineligible). 9. On 5 March 2018, the applicant was provided a copy of the above advisory and given the opportunity to submit additional comments. The applicant has not provided any additional comments. REFERENCES: 1. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. a. Paragraph 1-21 states when an officer’s promotion suspension 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 ADOR, effective date (for pay and allowances), and position on the Active Duty List (ADL) he or she would have received had there been no delay. b. Table 3-1 (Rules for 2LT Date of Rank and 1LT Promotion Eligibility), Rule 4 states for an officer who receives a direct commission his/her DOR is the date of original appointment. The eligibility date for promotion to 1LT is the earlier date between 18 months of active Federal commissioned service or the day prior to the 2nd anniversary of the 2LT DOR. c. Paragraph 8-2 states HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. Among the reasons an officer may be referred to a PRB is punishment under Article 15, UCMJ (whether filed in the restricted or performance fiche of the official military personnel file (OMPF). d. Paragraph 8-8c states the PRB’s recommendation is only advisory to the SA. In cases involving promotion to the grade of colonel or below, the board’s report will be forwarded to the SA who, on behalf of the President, may remove from the promotion list the name of the officer, in a grade above second lieutenant, retain the officer on the promotion list, return the report to the Deputy Chief of Staff (DCS), G-1, or direct other appropriate action. The same options apply when the Secretary acts under his authority to remove warrant officers from a promotion list. 2. Army Directive 2016-26 states when considering a Secretary of Defense appointment to the next higher grade, the SA may exempt adverse information considered during an earlier Secretary of Defense appointment to the next higher grade. 3. DODI 1320.04, Enclosure 4, paragraph 1a(2) states adverse information does not include: a. Information previously considered by the Senate pursuant to an earlier nomination of the officer. b. Information attributed to an individual 10 or more years before the date of the personnel action under consideration, except for substantiated conduct any single act of which, if tried by court-martial, could have resulted in the imposition of a punitive discharge and confinement for more than 1 year. The date of the substantiated adverse finding or conclusion from an officially documented investigation or inquiry is used to establish the time period, not the date of the incident. 4. 10 USC 741 states the Secretary concerned may adjust the DOR of an officer appointed under section 624(a) of this title to a higher grade that is not a general officer or flag officer grade if the appointment of that officer to that grade is delayed from the date on which (as determined by the Secretary) it would otherwise have been made by reason of unusual circumstances (as determined by the Secretary) that cause an unintended delay in: * the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or * the processing or approval of the promotion list established on the basis of that report 5. The adjusted DOR applicable to the grade of an officer shall be the effective date for: * the officer’s pay and allowances for that grade; and * the officer’s position on the active-duty list DISCUSSION: 1. Based the date of the applicant's appointment to 2LT on 1 October 2013 in the Regular Army, he completed 18 months active Federal commissioned service on 1 April 2015. 2. The PRB reconsideration for promotion ended favorably for the applicant making him qualified for promotion during the entire period of delay in his promotion. Based paragraph 1-21 of AR 600-8-29, the applicant should have been promoted to 1LT with a DOR and effective date on his original date of eligibility for promotion. 3. According to the advisory opinion from HRC, the reason for the unusual delay in appointment may have included but was not limited to an initial administrative or system(s) error that did not correctly calculate or recognize him as eligible for scroll appointment, approval and promotion and a delay due in part to the Screening Requirement for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below. 4. HRC recommended the applicant's DOR and effective date be retroactive to his promotion eligibility date of 1 April 2015 pursuant to 10 USC 741 based on an "unusual delay." The adjusted DOR will be the effective date for all pay and allowances for that grade and the applicant's position on the ADL. 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 first lieutenant with an effective date and date of rank of 1 April 2015, with entitlement to back pay and allowances based on this adjustment. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170014333 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170014333 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2