IN THE CASE OF: BOARD DATE: 6 April 2022 DOCKET NUMBER: AR20210012096 APPLICANT REQUESTS: correction of her Date of Rank (DOR) to Chief Warrant Officer Five (CW5). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum – Subject: Nomination for promotion to Chief Warrant Officer Five (CW5) * Memorandum – Subject: Army National Guard (ARNG) Federal Recognition Board (FRB) Promotion Review Panel NG2001-05 Results * The Secretary of Defense (Appointment) letter, dated 25 February 2021 * Memorandum – Subject: Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 16 March 2021 * Special Orders Number 69 AR, dated 16 March 2021 * Email communication FACTS: 1. The applicant states in pertinent part that on 8 July 2019, she was removed from Scroll "WO 12-19" when her post board screening was denied. She contests that she was then referred to the Promotion Review Panel (PRP) and submitted a rebuttal. On 10 January 2021, the results of the Federal Review Board (FRB) panel results retained her on the appointment scroll and further recommended that she be appointed to CW5. Subsequently, the Secretary of Defense appointment was signed on 25 February 2021. Her promotion orders were published on 16 March 2021, with an effective date of 25 February 2021. Therefore, she is requesting to have her DOR and effective date of promotion back dated from 25 February 2021 to a date that is consistent with the other warrant officers that were promoted on the WO 12-19 scroll. Doing so would make her more competitive with the other warrant officers for positions in the Army National Guard (ARNG) and within the National Guard Bureau (NGB). 2. A review of the applicant's available service records reflects the following: a. After serving as an enlisted Soldier, on 7 March 1998, the applicant was appointed a commission as a warrant officer at the rank of Warrant Officer One (WO1) within the ARNG. b. On 12 January 2001, the NGB issued Special Orders Number 12 AR announcing Federal recognition of the applicant's appointment at the rank of WO1 to Military Occupational Specialty (MOS) 420A (Military Personnel Technician), effective 6 December 2000. c. On 11 January 2001, the NGB issued Special Orders Number 10 AR announcing Federal recognition of the applicant's appointment to the rank of Chief Warrant Officer Two (CW2), effective 1 January 2001. d. On 3 February 2006, the NGB issued Special Orders Number 35 AR announcing Federal recognition of the applicant's appointment to the rank of Chief Warrant Officer Three (CW3), effective 1 January 2006. e. On 22 February 2012, the NGB issued Special Orders Number 63 AR announcing Federal recognition of the applicant's appointment to the rank of Chief Warrant Officer Four (CW4), effective 15 February 2012. f. On 22 November 2016, the applicant completed the Warrant Officer Senior Service Education course. g. On 12 April 2019, the ARNG issued Orders Number 102-013 reassigning the applicant from the Human Resource Officer Recruiting and Retention position to a Human Resource Officer Joint Force position; maximum grade CW5, effective 15 April 2019. h. On 30 April 2019, the ARNG issued Orders Number 120-029 promoting the applicant to the rank of CW5, effective 23 April 2019. The effective date of promotion cited on this order would be adjusted to be concurrent with the effective date of Federal recognition in the ARNG when granted by the Chief, NGB. i. On 16 March 2021, the NGB issued Special Orders Number 69 announcing Federal recognition of the applicant's appointment to the rank of CW5, effective on with a DOR of 25 February 2021. 3. The applicant provides the following a: a. Memorandum – Subject: Nomination for promotion to CW5, reflective of the Assistant Secretary of the Army Manpower and Reserve Affairs nomination of the applicant for promotion to the rank of CW5. The letter further provides that the applicant was on an ARNG Warrant Officer Scroll and her name was returned to the ARNG without action for further review of her record. Upon review they were able to determine with a reasonable degree of certainty that the applicant was not a subject in an on-going investigation; was not pending adjudication of substantiated adverse information; and had not been found to have any substantiated allegations or formal charges filed against her regarding detainee abuse or the Recruiting Assistance Program. As such, he further recommended that the applicant be appointed to the rank of CW5. b. Memorandum – Subject: ARNG FRB Promotion Review Panel NG2001-05 Results, reflective of the ASAM&RA retaining the applicant on the ARNG appointment scroll and further recommending the applicant be appointed to CW5 in the Reserve of the Army. c. The Secretary of Defense (Appointment) letter, dated 25 February 2021, reflective of the Secretary of Defense appointment of the applicant to the rank of CW5. d. Memorandum – Subject: Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 16 March 2021, reflective of the applicant being promoted to the rank of CW5, effective 25 February 2021. e. Email communication reflective of the applicant being advised by the Army Review Boards Agency of the requirement to endorse her submitted DD Form 149; applicant acknowledged and complied. 4. On 5 April 2022, the National Guard Bureau, Chief Special Actions Branch provided an advisory opinion recommending approval of the applicant's request and backdating her DOR and effective date to 5 September 2019, the date of the original scroll (U12-19) that she was removed from. Title 10 United States Code (USC), section 14311 (a)(2) states in part that if disciplinary action is not taken against the officer, if the charges against the officer are withdrawn or dismissed, the officer shall be retained on the promotion list (including an approved all-fully-qualified-officers list, if applicable), 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. These officers 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. The applicant was placed through the PRP process for determination if the officer met exemplary conduct of standards for promotion. This process can take 12-18 months. 5. On 6 April 2022, the applicant was provided with a copy of the advisory opinion via electronic email and given 15 days to provide comments. 6. On 7 April 2022, by email, the applicant responded to the advisory opinion concurring with the recommendation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the National Guard Bureau, Chief Special Actions Branch advisory opinion, the Board concurred with the advising official recommendation for approval of the applicant's request and backdating her DOR and effective date to 5 September 2019, the date of the original scroll (U12-19) that she was removed from. 2. The Board found there was sufficient evidence to show the applicant should have her date of rank (DOR) adjusted to properly reflect her rank to Chief Warrant Officer Five (CW5). Based on regulatory guidance, and no fault of the applicant the Board determined her promotion records to Chief Warrant Officer Five (CW5) correction to show her DOR and effective date as 5 September 2019. Therefore, the Board determined relief was warranted and granted relief. 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 Army records and Defense Finance and Accounting System (DFAS) of the individual concerned be corrected to backdate her DOR to Chief Warrant Officer Five (CW5) with an effective date to 5 September 2019. 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 (Delay of Promotion: Involuntary) provides the appointment of an officer to a higher grade may be delayed if an investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer or if 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. a. If disciplinary action is not taken against the officer, if the charges against the officer are withdrawn or dismissed 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 the officer's appointment to the higher grade has been taken the officer shall be retained on the promotion list (including an approved all- fully-qualified-officers list, if applicable), 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 DOR, 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 (RASL) as the officer 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. If the Secretary makes such a determination, the Secretary may adjust such DOR, effective date of pay and allowances, and position on the RASL as the Secretary considers appropriate under the circumstances. c. The DOR and position on the RASL of a Reserve officer whose promotion to or Federal Recognition in the next higher grade was delayed solely as the result of the limitations imposed under the regulations prescribed by the Secretary of Defense shall be the date on which the officer would have been promoted to or recognized in the higher grade had such limitations not existed. 2. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR). a. Paragraph 3-18 (Removal from a promotion Selection List) provides that the authority to remove a name from a promotion list rest with the President for Commissioned Officers and the Secretary of the Army (SA) for Warrant Officers. Promotion Advisory Boards (PAB) will be convened to consider the promotion status of officers who are recommended for removal from a promotion list based on physical, personal or professional disqualification. If an officer is determined to be ineligible for consideration, the U.S. Army Human Resources Command (HRC) will verify the officer's ineligibility, explain the basis for the officer's ineligibility to the Secretary of the Army (SA), and advise the SA to request that the President approve removal or administrative deletion of the officer's name from the promotion board report or the promotion list. Commanders and CDR, HRC, Office of Promotions will continuously review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally, or professionally disqualified after being selected. Commanders and CDR, HRC, Chief, Office of Promotions (Reserve Component (RC)) may recommend officers for removal if their personnel records contain a memorandum of reprimand and or any adverse documentation being placed within their records. b. An officer's promotion is automatically delayed when the officer is under, or should be under, suspension of favorable personnel actions. c. If within 6 months after the effective date of promotion, new information results in a determination by CDR, HRC, Chief, Office of Promotions (RC) that an officer was, on the effective date of the promotion, in a non-promotable status, that promotion will be deemed to have been automatically involuntarily delayed. In such a case, the Officer's promotion is voided and the memorandum announcing the promotion will be revoked. However, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the involuntary delay had not been imposed. 3. Title 10, USC, section 14310 (Removal of Officers from a list of officers recommended for promotion) provides that the President may remove the name of any officer from a promotion list at any time before the date on which the officer is promoted. An officer whose name is removed from a list under subsection (a), (b), or (c) continues to be eligible for consideration for promotion. If that officer is recommended for promotion by the next selection board convened for that officer's grade and competitive category and the officer is promoted, the Secretary of the military department concerned may, upon the promotion, grant the officer the same DOR, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the RASL, as the officer would have had if the officer's name had not been removed from the list. 4. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. Title 10 USC, sections 624 and 741 provide for situations in which properly appointed officers are provided "backdated" DOR 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. 5. Department of Defense Instructions 1310.01 (Rank and Seniority of Commissioned Officers) states the Secretary of the Military Department concerned may adjust the DOR of an officer, except a general or flag officer, appointed to a higher grade under Title 10, USC, sections 624(a) or 14308(a) (Promotions: how made) if the appointment of that officer to the higher grade is delayed by unusual circumstances. The Secretary of the Military Department concerned must determine that the unusual circumstance caused an unintended delay in processing or approval of the selection board report or promotion list in order for an officer's DOR to be adjusted. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012096 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1