IN THE CASE OF: BOARD DATE: 3 August 2020 DOCKET NUMBER: AR20180009018 APPLICANT REQUESTS: a change in his Date of Rank (DOR) to Chief Warrant Officer 4 (CW4) to be backdated to the date of his state order or as appropriate APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Transfer Order * California Army National Guard (ARNG) Promotion Order * National Guard Bureau (NGB) Promotion Order * Federal Recognition Order * email from a Chief Warrant Officer 5 (CW5) of the California ARNG FACTS: 1. The applicant states he is requesting that his promotion to CW4 DOR which is 16 March 2018, be back dated to his state order, which has an effect DOR of 28 March 2017 or as appropriate. He believes the DOR currently related to his promotion is unjust because he had been serving in a CW4 slot and performing at a high level since 1 November 2015. The Federal Recognition Scroll he was on, U11-17, took approximately 273 days to go through the process. This excessively long process not only affected him financially but affected his military career path as his time in grade had been delayed for his next service school eligibility and ultimately delayed his promotion to CW5. 2. The applicant's service record contains the following documents for the Board's consideration: a. Orders 87-1033, published by the Joint Force Headquarters, California ARNG, dated 28 March 2017 which promoted the applicant to CW4 effective 28 March 2017. b. Special Orders Number 70, published by NGB, dated 27 March 2018, which gave the applicant federal recognition of his promotion to CW4 with an effective date of 16 March 2018 and a DOR of 16 March 2018. c. A memorandum from NGB, dated 27 March 2018, which informed the applicant of his promotion to CW4 with an effective date and DOR of 16 March 2018. d. The applicant's service record is void of any disciplinary or adverse information. 3. The applicant provides the following documents for the Board's consideration: a. Orders 354-1044, published by Joint Force Headquarters, California ARNG, dated 19 December 2016 transferring the applicant into a new position within the California ARNG. b. Orders 87-1033, published by Joint Force Headquarters, California ARNG, dated 28 March 2017, which were present in his service record. c. A memorandum from NGB, dated 27 March 2018, which was present in his service record. d. Special Orders Number 70, published by NGB, dated 27 March 2018, which were present in his service record. e. An email from a CW5 within the California ARNG, dated 15 April 2018, which states a big issue across the National Guard causing low morale for some but more frustration was the lengthy federal recognition process for promotions. The Army was open to providing back pay to Guard officers who were caught in the backlog. Guard officers could request their DOR back dated via the Board process. 4. See all applicable regulatory guidance below. BOARD DISCUSSION: After reviewing the application and all supporting documents, including the applicant’s statement, the Board determined there is insufficient evidence to grant relief. The Board found insufficient evidence in the official record and from independent corroborating sources, of error, inequity, or injustice in the applicant’s promotion process or date of rank to CW4. There is insufficient evidence that the applicant’s promotion process took any longer than any other CW4 promoted on the Federal Recognition Scroll he was on, U11-17. Therefore, the Board found that the applicant’s date of rank is proper and equitable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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) 600-100 (Commissioned Officer Federal Recognition and Related Personnel Activities) states Appointment as a Reserve commissioned Officer of the Army. Upon being federally recognized, a commissioned Officer who does not hold an appointment as a Reserve commissioned officer of the Army shall be appointed a Reserve officer of the Army in the same grade in which the Officer holds a federally recognized appointment in the ARNG and concurrently shall become a member of the ARNG. Officers who have attained status as Reserve commissioned Officers of the Army with assignment to the ARNG may be transferred in grade to the Army Reserve with the consent of the Governor or other appropriate authority of the State, under such regulations as the Secretary of the Army may prescribe. Unless an ARNGUS Officer is discharged from the Reserve of the Army concurrent with withdrawal of Federal recognition, the Officer becomes a member of the Army Reserve upon separation from the ARNG. An ARNGUS Officer's years of service for purposes of promotion and federal recognition will be computed in accordance with Title 10, USC, section 3350. Such service is generally computed by adding all service that the Officer has or is credited by the Secretary of the Army with having, in grade in the Army, or at the discretion of the Secretary of the Army, any other armed force, while in an active status or as a regular officer on the active list of that service, or on the active duty list of the U.S. Army. 2. Title 10 USC 624 (Promotions: how made) states, in pertinent part, a promotion list is considered to be established under this section as of the date of the approval of the report of the selection board under the preceding sentence. Promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. a. Under regulation prescribed by the Secretary of Defense, the appointment of an officer may be delayed if: (1) Sworn charges against the officer have been received by an officer exercising general court-martial jurisdiction over the officer and such charges have not been disposed of; (2) An investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer; (3) A board of officers has been convened under chapter 60 of this title to review the record of the officer (4) A criminal proceeding in a Federal or State court is pending against the officer; or (5) Substantiated adverse information about the officer that is material to the decision to appoint the officer is under review by the Secretary of Defense or the Secretary concerned. (6) If no disciplinary action is taken against the officer, if the charges against the officer are withdrawn or dismissed, if the officer is not ordered removed from active duty by the Secretary concerned, if the officer is acquitted of the charges brought against him or if, after a review of substantiated adverse information about the officer regarding the requirement for exemplary conduct, the officer is determined to be among the officers best qualified for promotion, as the case may be, then unless action to delay an appointment has also been taken, the officer shall be retained on the promotion list including an approved all-fully-qualified-officers list, if applicable and shall, upon promotion to the next higher grade, have the same date of rank, the same effective date for the pay and allowances of the grade to which promoted and the same position on the active-duty list as he would have had if no delay had intervened, unless the Secretary concerned determines that the officer was unqualified for promotion for any part of the delay. b. Under regulations prescribed by the Secretary of Defense, the appointment of an officer under this section may also be delayed in any case in which there is cause to believe that the officer has not met the requirement for exemplary conduct as applicable, or is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he was selected for promotion. If it is later determined by a civilian official of the Department of Defense that the officer is qualified for promotion to such grade and, after a review of adverse information regarding the requirement for exemplary conduct the officer is determined to be among the officers best qualified for promotion to such grade, the officer shall be retained on the promotion list and shall, upon such promotion, have the same date of rank, the same effective date for pay and allowances in the higher grade to which appointed, and the same position on the active-duty list as he would have had if no delay had intervened. c. An appointment of an officer may not be delayed under this subsection for more than six months after the date on which the officer would otherwise have been appointed unless the Secretary concerned specifies a further period of delay. An officer's appointment may not be delayed more than 90 days after final action has been taken in any criminal case against such officer in a Federal or State court, more than 90 days after final action has been taken in any court-martial case against such officer, or more than 18 months after the date on which such officer would otherwise have been appointed, whichever is later. 3. Title 10 USC 741 (Rank: commissioned officers of the armed forces), states in pertinent part: a. The Secretary concerned may adjust the date of rank 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 it would otherwise have been made by reason of unusual circumstances as determined by the Secretary that cause an unintended delay. b. The adjusted date of rank applicable to the grade of an officer 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. c. The adjusted date of rank 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. 4. Title 10 USC 14308 (Promotions: how made) states in pertinent part, promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. 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 shall be the date on which Federal recognition in that grade is so extended. 5. Title 10 10 USC 14308(f), amended as part of the FY19 NDAA (enactment date: 13 August 2018), provides the Secretary of the Army the authority to adjust the effective date of a reserve commissioned officer's promotion where undue delay in the Federal Recognition process has occurred. The FY19 NDAA also specifically states that the effective date of the amendment is the date of the enactment of the FY19 NDAA (i.e., 13 August 2018) "and shall apply with respect to promotions of officers whose State effective date is on or after that date." Therefore, this authority is only valid for promotions on or after 13 August 2018 (i.e., the enactment of the FY19 NDAA). ABCMR Record of Proceedings (cont) AR20180009018 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1