ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 November 2019 DOCKET NUMBER: AR20180012315 APPLICANT REQUESTS: * Date of Rank (DOR) to first lieutenant (1LT)/O-2 adjusted to 23 November 2016 * Pay and entitlements for the 1LT DOR backdated * A Special Selection Board (SSB) to the rank of captain (CPT)/O-3 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email from the Human Resources Command (HRC) stating although he was eligible for automatic promotion on 23 November 2016, his name was withheld from nomination by the Secretary of the Army (SECArmy). * DA Form 268 (Report to Suspend Favorable Personnel Actions) effective date 30 August 2016 HQDA initiated flag, dated 28 September 2016 * DA Form 268 removal of flag effective 30 August 2016, dated 27 April 2018 * Orders Number 145-813, dated 25 May 2018, effective date of promotion to 1LT effective 8 May 2018 FACTS: 1. The applicant states, he was flagged 30 August 2016 by Headquarters Department Army (HQDA) due to being referred to a Promotion Review Board (PRB). This delayed his promotion, which would have occurred 23 November 2016. The PRB was erroneous on 27 April 2018, and his promotion eligibility was immediately restored. Mr. Xxxxx Xxxx from HRC notified him via email that although his DOR should have been 23 November 2016, HRC only had the authority to back-date his DOR to 8 May 2018. He then directed him to apply through the ABCMR and request his correct DOR by eligibility and all pay and entitlements. Because the SECArmy deemed he was eligible for promotion, his DOR to 1LT should be adjusted to its original date without the delay, and he should receive all pay and entitlements effective from then. 2. The applicant provided: * Email from the HRC stating although he was eligible for automatic promotion on 23 November 2016, his name was withheld from nomination by the SECArmy for derogatory documents and information. * Orders Number 145-813, dated 25 May 2018 effective date of promotion to 1LT effective 8 May 2018 3. The applicant’s service record shows: a. He enlisted in the Regular Army on 25 July 2002. b. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that on 14 May 2015, he was honorably discharge in accordance with AR 635-200 Paragraph 16-1a, for accepting a commission or warrant in the Army. c. DA Form 71 (Oath of Office), dated 15 May 2015, shows he accepted a commission as a second lieutenant (2LT) in the Regular Army. d. On 17 October 2016, the applicant was notified that his promotion was being withheld based upon the SECArmy's knowledge of two military police reports from 2005 and an Article 15 from 2007. e. DA Form 268 was initiated effective 30 August 2016, dated 28 September 2016 by HQDA. f. DA Form 268 was removed effective 30 August 2016, dated 27 April 2018 by HQDA. g. Order number 145-813, dated 25 May 2018, shows he was promoted to 1LT with an effective date of promotion of 8 May 2018. h. An email, dated 17 September 2018 shows that the SECArmy did not authorize the applicant promotion to be back dated, and to contact ARBA to request his correct DOR by eligibility. i. Milper Message 18-245 stated in effect once the promotion scrolls are approved by the Secretary of Defense and received at promotions branch HRC the DOR for all 1LTs will be adjusted to the date the officer obtained 18 months’ time in grade. Officers will also receive all back pay and allowances. 4. An advisory opinion was obtained from the Chief, Officer Promotions, HRC on 28 August 2019. The advisory official opined: a. Based on a review of the information provided, their records and the systems available to HRC Officer Promotions, they found that the applicant’s request to adjust his 1LT DOR does have merit. b. Department of Defense policies and law requires the Army to certify that all officers submitted for promotion meet the exemplary conduct provisions of U.S.C. (Armed Forces) Title 10, § 3583. In order for the Secretary of the Army, or his designated representative, to certify exemplary conduct, he or she must be apprised of any adverse information contained in the official files maintained by the United States Army Criminal Investigation Command (CID), the Department of the Army Inspector General (DAIG) and the Army Military Human Resource Records (AMHRR). c. This post board or selection screening review process may have been the sole reason for his delay of promotion. He was not denied appointment to 1LT by the SECArmyy or the Secretary of Defense. Therefore in fairness, they recommend that he be granted full relief and receive his initial promotion eligibility DOR and effective date of 23 November 2016 to 1LT (such as other officers before him), pursuant to USC, Title 10 §7 41 based under an "unusual delay" as it should apply (unless proven otherwise ineligible). 5. The advisory official did not address sending his record before a SSB. 6. The applicant was provided with a copy of this advisory opinion on 10 September 2019 to give him an opportunity to submit comments. He did not respond 7. AR 600-8-29 (Officer Promotions) paragraph 7-2a(1)(2)(3) states that a. The SSB may be convened under US 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1). An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the Temporary Disability Retired List (TDRL) and who have since been placed on the active duty list (ADL). (2). The board that considered an officer from in or above the promotion zoned did not have before it some material information (SSB discretionary). (3). The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuous board following their second failure of selection for promotion. Special Selective Continuation Boards for USAR warrant officers on the Active Duty List are solely governed by this regulation. 8. AR 600-8-29 (Officer Promotions) paragraph 3-1) states that the paid entry date (PED) will be computed according to the rules given in table 3-1.: Eighteen months of active duty service as a 2LT on the ADL. If the officer's source of commission is the Reserve Officers' Training Corps (ROTC), active duty service commences on the year, month, and day the officer enters active duty based on the computation of travel per the Joint Federal Travel Regulation (JFTR). An exception to this will be an ROTC graduate who is appointed and enters active duty in the month of May or June of the same year. His or her paid entry date will be eighteen month from of the United State Military Academy (USMA) graduation of the year the officer entered active duty. 9. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of AR 15-185. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions and the advisory opinion were carefully considered. He was flagged and delayed promotion to 1LT while derogatory information within his record was reviewed. As a result, the flag was removed and he was not denied appointment to 1LT. A HRC advisory official recommended full relief granting him an adjusted DOR and back pay; however, the advisory official did not address a SSB. The Board agreed the applicant’s request has merit, and that his DOR to 1LT should be adjusted. The Board also agreed HRC should determine the earliest CPT promotion selection board for which his record should be considered by a SSB based upon the adjusted DOR to 1LT. 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: 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: a. showing his date of rank to 1LT as 23 November 2016; b. showing his effective date to 1LT as 23 November 2016; c. authorizing payment of all back pay and allowances as a result of these corrections; and d. reviewing his records to determine if, based on these corrections, he should have been considered for promotion to captain/O-3 and, if so, submitting his records to the appropriate special selection board (SSB) for review. 2. The Board further determined that 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 a SSB for promotion to CPT if he was not eligible. 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. AR 600-8-29 (Officer Promotions) paragraph 7-2a(1)(2)(3) states that a. The SSB may be convened under US 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL. (2) The board that considered an officer from in or above the promotion zoned did not have before it some material information (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuous board following their second failure of selection for promotion. Special Selective Continuation Boards for USAR warrant officers on the Active Duty List are solely governed by this regulation. 2 AR 600-8-29 (Officer Promotions) paragraph 3-1) states that the paid entry date (PED) will be computed according to the rules given in table 3-1. Eighteen months of active duty service as a 2LT on the ADL. If the officer's source of commission is the Reserve Officers' Training Corps (ROTC), active duty service commences on the year, month, and day the officer enters active duty based on the computation of travel per the Joint Federal Travel Regulation (JFTR). An exception to this will be an ROTC graduate who is appointed and enters active duty in the month of May or June of the same year. His or her PED will be eighteen month from of the United State Military Academy (USMA) graduation of the year the officer entered active duty. 3. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of AR 15-185. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012315 6 1