ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20180014317 APPLICANT REQUESTS: effective date of rank (DOR) correction to Chief Warrant Officer Three (CW3) to 17 August 2016. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * continuation of DD Form 149 * amendment orders for promotion * orders promotion to CW3 * memorandum regarding the effective date of promotion * Army Directive 2016-26 * enclosure 4 to the Army Directive regarding Adverse and Reportable Information * excerpt from Title 10 U.S. Code Section 14311 FACTS: 1. The applicant states: * he requests a change to his effective DOR to 17 August 2016 so he can be fully competitive for future promotions and assignment considerations with his peer group * he was assigned to Federal Recognition Scroll U05-16 and was removed from it for referral to a Promotion Review Board (PRB) * he was removed for infractions that were 17 years old and older * the infractions did not meet the criteria for Adverse Information (AI) * one of the infractions potentially could have met the qualifications for AI * that incident occurred over 23 years ago when the applicant was a young Soldier in training * it is evident he was referred to a PRB for every infraction * he had to submit a response for all of them as opposed to the one that possibly met the criteria for AI * the Officer Review Board should have only considered the one infraction when making a determination to refer him to a PRB * the other infractions did not meet the criteria of AI nor pattern of misconduct * the most recent infraction happened over 17 years before the time of referral to a promotion review board * it was well outside of the 10 year limit * Army National Guard (ARNG) WOs do not receive the same legal protection WOs of the US Army Reserve (USAR) and Regular Army receive when erroneously removed from scroll subjecting one to an undue delay with no recourse * he was referred to a PRB from Headquarters, Department of the Army to the ARNG G1 * at the time, National Guard Bureau (NGB) had never conducted a PRB * he believes because of that, he experienced a delay extremely longer than necessary * he cannot confirm the timeline that his promotion packet was at each office awaiting action * he believes that it was misplaced a few times as it took 891 days from the date of publishing of his state order to the date he was promoted 2. The applicant provides the following timeline regarding his promotion to CW3: * 8 September 2015 - selected for promotion by OHARNG Warrant Officer Ranking Board * 14 December 2015 - forwarded to DA for scrolling * 10 December 2015 – state order amended changing effective date for max time in grade for AGR warrant officers * On or around Jan-Feb 2016 – assigned to FED REC Scroll U05-16 * 18 July 2016 - returned to NGB for referral to PRB * 21 September 2016 - received DA DSC G-1 referral to PRB notification dated 13 June 2016 * 21 September 2016 - received NGB's referral to PRP notification dated 16 September 2016 * 9 November 2016 - Promotion Review Panel conducted by NGB * 6 January 2017 - NGB sent completed PRP results back to HQDA, DCS, G-1 * 17 January 2017 - assigned to single nominative scroll U31-17 * 17 May 2018 – promoted to CW3, 3 years past state orders effective date 3. The applicant provides the following documents for the Board's consideration: * Orders 344-936, published by State of Ohio Adjutant General's Department, dated 10 December 2015 amending his promotion orders to change the effective date of promotion from 4 November 2015 to 4 May 2016 * Special Orders Number 150, published by NGB, dated 9 July 2018 promoting the applicant to CW3 effective 17 May 2018 * a memorandum to the Board subject effective date of rank of applicant, dated 14 April 2017, signed by the Ohio State Judge Advocate, which states: * the applicant was placed on Federal Recognition Scroll U05-16, dated 17 August 2016 for promotion to CW3 * he was removed 7 months later for potential adverse information * the applicant was referred to a PRB for derogatory information which was incorrectly defined as AI * it did not meet the definition as defined in Department of Defense Instruction (DoDI) 1320.04 * none of the derogatory information would have resulted in a punitive discharge or confinement for more than one year * referral to a PRB should have been based on information meeting the definition of AI * all derogatory information was nearly 20 years old or older * there is no authority to use information not AI for referral to a PRB particularly to disregard the special requirements for officers with derogatory information over 10 years * the PRB gave little weight to the information and recommended the applicant be promoted * although the promotion occurred, its effective date was improperly set after 17 August 2016 due to the time it took to consider the applicant's derogatory information * Title 10 USC Section 14311(a)(2) states, if after review of the AI, it is determined the officer is retained on the promotion list shall upon promotion have the same DOR and effective DOR as the officer who would have had no delay * after a review of the derogatory information in the applicant's file he was determined to be among the best qualified for promotion * he was promoted and his effective DOR should be 17 August 2016 the publishing date of Federal Recognition Scroll 705-16 * ARNG WO's like the applicant are not being afforded the benefit of Title 10 USC Section 14311(a)(2) * the effective date of the applicant's DOR should be amended to 17 August 2016 * this will allow him to remain fully competitive for all future promotions with his peers on Federal Recognition Scroll U05-16 * Army directive 2016-26 (Screening Requirements for Adverse and Reportable Information for Promotion and Federal Recognition for Colonel and Below), dated 18 July 2016, which references DODI 1320.04 regarding derogatory information. * DODI 1320.04 enclosure 4 (Adverse and Reportable Information), which states: * adverse information is any substantiated adverse finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature * to be credible, the information must be resolved and supported by a preponderance of the evidence * to be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual * the following types of information are not considered adverse: motor vehicle violations that did not require a court appearance; minor infractions without negative effect on an individual or the good order and discipline of the organization * adverse information does not include information attributed to an individual 10 or more years before the date of the personnel action under consideration, unless 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 * an excerpt from Title 10 USC 14311 which states if disciplinary action is not taken against the officer, if the charges against the officer are withdrawn or dismissed…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 reserve active status list as the officer would have had if no delay had intervened… 4. The applicant's service records contain the following documents: * an NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 30 May 2018 in which the board determined the applicant should be promoted to CW3 * Orders 115-890 published by State of North Carolina Department of Public Safety, dated 25 April 2019 honorably separating the applicant into the Retired Reserve effective 29 February 2020 5. The applicant's record is void of any derogatory reports or investigations. 6. The ARNGB reviewed the applicant’s records on 29 August 2019, and rendered an advisory opinion in his case. ARNGB recommends the partial approval of the applicant’s request therein adjusting his date of rank from 17 May 2018 to 17 August 2017. The promotion review process was new and the current policy does not require background checks for the entirety of the Soldier’s career. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 7. On 5 September 2019, the applicant was advised of the ARNGB recommendation of partial approval and afforded him the opportunity to submit comments. The applicant responded on 12 September 2019 and stated: * he requests full approval in lieu of the partial approval recommended by NGB * NGB's advisory does not address that he was wrongly referred to a PRB based on information that did not meet the requirement of AI * all information was more than 17 years old at the time of referral to the PRB * that is well outside the 10 years or less requirement for derogatory information to be looked at * the most recent Criminal Investigation Department (CID) reports were in 1999 * he does not have a CID report for the year 2006 as stated in the advisory * he's had a stellar career since 1999 * the advisory is incorrect regarding the number of reports related to him * current and previous policy does not require a background check for the entirety of a Soldier's career * he's requesting his DOR and effective DOR be 17 August 2016 to remain competitive with his peers and maintain his high 3 for retirement pay purposes 8. Title 10, USC, section 14311, paragraph a(2) states, 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, the officer shall be retained on the promotion list, list of officers found qualified for Federal recognition, or list of officers nominated by the President to the Senate for appointment in a higher reserve grade 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board noted the Ohio State Judge Advocate’s assessment that the applicant’s promotion to CW3 was delayed based on review of adverse information that did not form a basis for review under Department of Defense guidance. Due to the resultant delay, the promotion that would have been effective on 17 August 2016 was delayed until 17 May 2018. Based on a preponderance of the evidence, the Board determined that the provisions of Title 10, USC, section 14311, require correction of the applicant’s record to show the effective date of his promotion to CW3 was 17 August 2016. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 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 to show the effective date of his promotion to chief warrant officer three is 17 August 2016 and paying him any back pay and allowances he is due 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. REFERENCES: 1. Title 10, USC, section 14311, paragraph a(2) states 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, the officer shall be retained on the promotion list, list of officers found qualified for Federal recognition, or list of officers nominated by the President to the Senate for appointment in a higher reserve grade 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. 2. DODI 1320.04 enclosure 4 (Adverse and Reportable Information), states adverse information is any substantiated adverse finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature. To be credible, the information must be resolved and supported by a preponderance of the evidence. To be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual. Adverse information does not include information attributed to an individual 10 or more years before the date of the personnel action under consideration, unless 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. ABCMR Record of Proceedings (cont) AR20180014317 6 1