ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 May 2020 DOCKET NUMBER: AR20180005753 APPLICANT REQUESTS: adjustment of his date of rank (DOR) to Chief Warrant Officer 4 (CW4) to be backdated to within 45 days of his state promotion. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * email regarding requested relief * Promotion Orders * Federal Recognition FACTS: 1. The applicant states his state promotion to CW4 was effective 16 October 2015, but the federal recognition did not take effect until 8 July 2016, 9 months later. The amount of time taken for his promotion to become federally recognized was excessive. The cause was inherent latency caused by the system implemented to vet officer promotions with current staffing levels. The issue has been recently addressed by the Secretary of the Army and was later briefed by National Guard Bureau (NGB) that backdating of promotions could be requested through the Board process. 2. The applicant's service records contain the following documents for the Board's consideration: a. A memorandum from NGB, dated 5 November 2009 showing the applicant was promoted to Chief Warrant Officer Three (CW3) effective 1 September 2009. b. An Officer Record Brief, dated 21 January 2012, which shows: * the applicant was promoted to Chief Warrant Officer Two on 22 June 2005 * he was promoted to CW3 on 1 September 2009 * he completed Warrant Officer Basic Course in 2006 c. Orders, published by California Army National Guard (ARNG), dated 22 October 2015, which promoted the applicant to CW4 effective 16 October 2015. 3. The applicant provides the following documents for the Board's consideration: a. An email from the applicant to a representative from the California ARNG and the response, dated 15 April 2018 and 16 April 2018 respectively which state, * the applicant was intending to apply for the correction to backdate his DOR * the ARNG representative stated normally it would go through the state and NBG; however, they would not be able to provide relief without the Board directing the findings on his behalf b. Orders, which were contained in the applicant's service record. c. Special Orders 159, published by NGB, dated 1 August 2016, which show the applicant was federally recognized as a CW4 with a DOR of 18 July 2016. 4. In the processing of this case, an advisory opinion was obtained on 24 March 2020, from the Chief, Special Actions Branch, NGB. The advisory official recommended partial approval of the applicant's request. After further review and with discussion with the ARNG Federal Recognition Section, the relevant facts are the applicant's promotion packet took more than the allotted time to process and therefore it is the recommendation of both the ARNG Federal Recognition Branch and the Special Actions Branch that the applicant's DOR be adjusted to 16 May 2016. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. The applicant was provided a copy of this advisory opinion on 24 March 2020, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 6. See below for applicable references. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board also considered the findings of the NGB advisory opinion. Based upon the preponderance of the evidence provided, this Board agreed the authority to promote service members exceeds their authority, however, authority to remedy errors or injustices in reference to dates of rank and effective dates of rank for pay and allowances affecting promotions is given to the Service Secretaries. As such, the ABCMR possesses the authority to adjust the effective date of rank/promotion in this case. The Board agreed that there was sufficient documentation to grant partial relief and amend the effective date of rank to CW4 to 16 May 2016. The effective date of promotion is established under law by Title 10, U.S. Code and is approved by the SECDEF. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 adjusting the applicant’s date of rank to CW4 effective 16 May 2016. 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 changing the effective date of rank to 16 October 2015. 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. REFERENCES: 1. National Guard Regulation (NGR) 600-101 Chapter 7 (Promotions) states: a. The promotion of Warrant Officers in the ARNG is a function of the State. As in original appointments, a Warrant Officer promoted by State authority has a State status in which to function in the higher grade, however, to be extended Federal Recognition in the higher grade the officer must satisfy the requirements prescribed herein and the President of the United States (POTUS), or the Secretary of Defense acting on behalf of the POTUS, must first approve the promotion as a Reserve Warrant Officer of the Army. When the State promotion is federally recognized, the ARNG Warrant Officer is concurrently promoted as a Reserve Warrant Officer of the Army. b. Temporary Federal Recognition may be granted to those eligible when the board finds the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a federally recognized unit of the ARNG. 2. Title 10, USC section 14308(f) (Effective date of promotion after Federal Recognition) states that the effective date of a promotion of a Reserve Commissioned Officer of the Army who is extended Federal Recognition in the next higher grade in the Army National Guard under section 307 or 310 of Title 32 shall be the date on which the Federal Recognition in that grade is so extended. 3. The ABCMR may not appoint an officer to a higher grade. That authority is reserved for the President and has not been delegated below the Secretary of Defense. 4. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 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. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005753 4 1