ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS I BOARD DATE: 4 June 2019 DOCKET NUMBER: AR201700019027 APPLICANT REQUESTS: * change his date of rank (DOR) * back pay to his new DOR APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * email Scroll Withhold Notification * Report to Suspend Favorable Personnel Actions (Flag) * Referral to a Promotion Review Board (PRB) * Military Police (MP) Report 2005 and 2010 * self-authored rebuttal to PRB * letters of support to the PRB * removal Flag * PRB Results * email advising applicant to contact Army Board of Correction of Military Records (ABCMR) * Promotion Order to First Lieutenant FACTS: 1. The applicant states: * he currently has the date of rank (DOR) of 15 May 2017 * he requests his DOR be corrected to 23 November 2016 * he was scheduled to be promoted from Second Lieutenant (2LT) to First Lieutenant (1LT) on 23 November 2016 * he was informed his promotion would be withheld pending the outcome of a PRB * the PRB concluded and retained and promoted him to 1LT * he was notified via email of the pending PRB * the PRB was due to two MP reports one from 2005 and the other from 2010 * he was flagged and was formally notified of the PRB on 19 November 2016 * he chose to submit a memorandum of rebuttal along with supporting documents to the President of the BRP * his rebuttal explained the two MP reports and shy he felt he should be promoted to 1LT and allowed to continue to serve * each MP report occurred when the applicant was serving as an enlisted Soldier * at the time of the PRB the first incident was over 13 years prior and the second was over 6 years prior * he did not receive judicial or nonjudicial punishment under the Uniform Code of Military Justice for either incident * after the first incident, he had reenlisted for additional service on two occasions and been promoted to Staff Sergeant * after the second incident he was granted a Secret Security Clearance and was accepted to the Green to Gold Active Duty Option program * he received a Bachelor's Degree in Criminal Justice and commissioned as a 2LT * he graduated Infantry Officer's Basic Leader's Course in the top 20 percent of his class * he earned a place on the Commandant's List and completed the U.S. Army Ranger School * in order to be accepted into the Green to Gold program, his records were screened to ensure he was an acceptable candidate to become a commissioned officer * his records were screened again before his initial commissioning date * he received an Honorable Discharge as a noncommissioned officer and was then commissioned as a 2LT * if his character was in question, he should never have been accepted into the Green to Gold program, given an Honorable Discharge, or granted a commission without the possibility of promotion * he was notified of the completion of the PRB via email on 31 May 2017 * he received a memorandum dated 30 May 2017 informing him of the results of the PRB * the PRB decided to retain him on the promotion list * he received an email from S J. H with U.S. Army, Human Resource Command (HRC), dated 2 June 2017 which stated his DOR would be the date the Secretary of the Army approved his appointment to 1LT * his office could not back date the promotion any further * he should contact the ABCMR to request his correct DOR * attached to the email were his promotion orders to 1LT dated 15 May 2017 * had the PRB not delayed his promotion, he would have been promoted on track with his peers on 23 November 2016 * because the Board concluded with a decision in his favor, he has been cleared of any wrongdoing * his promotion should be backdated to the originally scheduled date of 23 November 2016 * he should be eligible for all pay and allowances he would have been entitled to had his promotion not been delayed until 15 May 2017 2. The applicant was eligible for promotion to the grade of 1LT on 23 November 2016. His name was withheld from nomination by the Secretary of the Army due to two MP reports in his file. 3. The applicant provided the MP reports for review by the Board. The applicant’s promotion was referred to a PRB on 19 November 2016. He provided a statement to the President of the Board describing the incidents of the two MP reports. He stated, in part: * in 2005 he was a Sergeant stationed in Germany * he consumed one alcoholic beverage before driving * he swerved to miss a deer and hit a guard rail * he tried to call his chain of command, but did not have cell service * he had other individuals in the car and the car was drivable * he left the scene of the incident in order to find a phone to call his chain of command * another car had driven by the accident and damaged his car due to debris on the road and they called the police * while at a train station looking for a phone, the German Police found him and questioned him about the incident * he admitted to what happened and was given a breathalyzer * he was not charged with driving while intoxicated * he was counseled by his chain of command, but not given any nonjudicial punishment * he paid all the fines and fees associated with the damage to property 4. The second MP report was in 2010. The applicant states, in part: * he, his wife, and a group of friends were out celebrating his wife's birthday * they had arranged for a designated driver * his wife had too much to drink * at the end of the night, he and his wife got into a verbal altercation * he was unable to calm her down * she called the local police, and he removed himself from the situation and called his first line supervisor * no physical violence or threat of violence occurred that evening * he was given a protection order and at his first hearing, the protection order was removed * the incident was determined not to be domestic violence and the whole incident was removed from his civilian record * there was no nonjudicial punishment given for the incident 5. The applicant provides letters of support that were sent to the PRB. They state, in part: * the applicant was an exception infantry noncommissioned officer and leader * he led by example, took the fight to the enemy, accomplished every mission to standard, and took care of his men * he would be trusted to lead the children of the writers in combat * they fully support and give their recommendation that he be promoted to 1LT * they were proud and honored to have served with him * the situation with the MP reports should in way effect the applicant's career negatively * they have never regretted any action or decision made by the applicant * they can attest to the applicant's character, professionalism, and potential for promotion * he was enumerated in the top three of over 150 students at the Infantry Basic Officer Leadership Course 6. The Secretary of the Army decided to retain the applicant on the promotion list. He was promoted to 1LT effective 15 May 2017 with a DOR of 15 May 2017. He received an email from Officer Promotions of HRC stating they could not adjust his DOR; however, he could contact the ABCMR and request correction of his DOR. 7. In the processing of this case, an advisory opinion was obtained on 25 March 2019, from the Chief, Officer Promotions Board Announcements, Support and Promotion Orders, of HRC. The advisory official noted and opined the applicant's request had merit and recommended he be granted full relief and his date of rank and effective date be retroactive to his promotion eligibility date of 8 November 2016 pursuant to Title 10 US Code (USC) Section 741 based on under an unusual delay. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 8. The applicant was provided a copy of this advisory opinion on 19 April 2019, to provide him an opportunity to comment and/or submit a rebuttal. He responded, in part: * he concurs with the advisory opinion that his case has merit * his promotion was not denied only delayed * he requests his promotion effective date be retroactively made to reflect his promotion eligibility date of 8 November 2016 pursuant to 10 USC 741 based on unusual delay * the circumstances the PRB deemed questionable had occurred over 13 and 6 years before the PRB respectively * they were during his time of service as an enlisted Soldier * he was honorably discharged as an enlisted Soldier and was granted his commission * anything that happened during his enlisted time should not be valid for consideration towards the measure of his character in regard to further promotions as a commissioned officer * the circumstances that caused the initiation of the PRB are the result of a titling issue * steps are being taken to have those records removed to ensure this issue does not occur in the future 9. The ABCMR may correct an officer’s date of rank/effective date of rank when a proper appointment has already occurred. a. 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer…appointed to a higher grade...if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes “unusual circumstances” will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the advisory opinion. The Board discussed the circumstances associated with his promotion delay, his statement related to the MP reports, the decision by the Secretary of the Army to retain him, the orders promoting him and the recommendation of the advisory opinion. The Board determined that his promotion was delayed by an unusual circumstances and that an inequity should be corrected. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Member 1 Member 2 Member 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 the Army records of the individual concerned be corrected by: - amending his promotion orders to 1LT dated 2 June 2017 to show an Effective Date and Date of Rank as 8 November 2016, and; - paying him any additional pay and allowances owed him as a result of this correction. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCE Title 10 US Code (USC) Section 741 states, the Secretary concerned may adjust the date of rank of an officer appointed to a higher 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 a. The adjusted date of rank applicable to the grade of an officer under the above paragraph shall be consistent: * with the officer’s position on the promotion list for that grade and competitive category when additional officers in that grade and competitive category were needed; and * with compliance with the applicable authorized strengths for officers in that grade and competitive category b. The adjusted date of rank applicable to the grade of an officer under the above paragraph 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 c. When under the above paragraph the Secretary concerned adjusts the date of rank of an officer in a grade to which the officer was appointed by and with the advice and consent of the Senate and the adjustment is to a date before the date of the advice and consent of the Senate to that appointment, the Secretary shall promptly transmit to the Committee on Armed Services of the Senate a notification of that adjustment. Any such notification shall include the name of the officer and a discussion of the reasons for the adjustment of date of rank. d. Any adjustment in date of rank under this paragraph shall be made under regulations prescribed by the Secretary of Defense, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps. ABCMR Record of Proceedings (cont) AR201700019027 2