IN THE CASE OF: BOARD DATE: 19 July 2022 DOCKET NUMBER: AR20210015729 APPLICANT REQUESTS: correction of his record to show his promotion to the rank/grade of Chief Warrant Officer 3 (CW3) to reflect 29 September 2017. He also requests a personal appearance before the Board via telephone or video. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 275-1037, dated 2 October 2017 * National Guard Bureau (NGB) Promotion Memorandum, dated 25 June 2018 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in pertinent part, his federal recognition date for promotion to CW3, effective 11 June 2018, does not match his state promotion date, effective 29 September 2017 and requests it backdated per H.R. 5515, Section 518 (Authority to Adjust Effective Date of Promotion in the Event of Undue Delay in Extending Federal Recognition of Promotion). 3. A review of the applicant's available service records reflects the following: a. On 10 April 2003, the applicant enlisted with the Washington Army National Guard (WAARNG). b. On 14 November 2008, he transferred from the WAARNG to the California Army National Guard (CAARNG), and was assigned to B Company, 223rd Military Intelligence Battalion. c. On 3 March 2009, Orders Number 63-1022 issued by the CAARNF, he was honorably discharged from the CAARNG. d. On 4 March 2009, he was appointed and executed an oath of office as a Reserve Warrant Officer, Orders Number 63-1018, and continues to serve. e. On 7 September 2011, the NGB issued a memorandum promoting him to Chief Warrant Officer 2 (CW2), effective 6 September 2011. f. On 2 October 2017, Orders Number 275-1037 issued by the CAARNG, promoted him to CW3 from the CAARNG, effective 29 September 2017. g. On 25 June 2018, the NGB issued a memorandum promoting him to CW3, effective 11 June 2018. 4. On 2 June 2022, the NGB, Chief, Special Actions Branch provided an advisory opinion recommending partial approval stating in pertinent part, the Soldier's Unit Vacancy Promotion (UVP) packet was submitted to the Army National Guard Federal Recognition (ARNG FEDREC) Branch in October 2017. At that time, Scroll U15-17 (the last scroll submission of Fiscal Year (FY) 2017) had already been submitted as of 22 September 2017. The first warrant officer scroll, U01-18 for promotion to CW3-CW5 in FY 2018 was submitted to Director Military Personnel Management (DMPM) on 21 December 2017. Consequently, Scroll U02-18, the scroll in which the applicant was assigned, was also submitted to DMPM on the same date. In coordination with the ARNG FEDREC Branch, there is no plausible explanation available at this time as to why there was a significant delay in the submission of FY18 scrolls to DMPM. Scroll U01-18 was signed and published with an effective date of 1 June 2018, 10 days prior to the publication of U02-18. As a matter of equity and in the absence of additional information, the ARNG FEDREC Branch recommends a blanket DOR adjustment for scrolls U01-18 and U02-18 to 25 May 2018. It is, therefore, the recommendation of this office the applicant's Date of Rank (DOR) and effective date of promotion be adjusted no earlier than 25 May 2018. 5. On 10 June 2022, the applicant was provided with a copy of the advisory opinion to provide a response. As of 25 June 2022, he did not respond. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant requests correction of his record to show his promotion to the rank/grade of CW3 to reflect 29 September 2017. The Board carefully considered the applicants request and statement, supporting documents, evidence in the records, and the NGB’s advisory opinion. The opinion states the applicant Unit Vacancy Promotion (UVP) packet was submitted to the Federal Recognition Branch in October 2017. At that time, Scroll U15-17 (the last scroll submission of FY17) had already been submitted as of 22 September 2017. The first warrant officer scroll, U01-18 for promotion to CW3- CW5 in FY18 was submitted to DMPM on 21 December 2017. Consequently, Scroll U02-18, the scroll in which the applicant was assigned, was also submitted to DMPM on the same date. In coordination with the ARNG FEDREC Branch, there is no plausible explanation available at this time as to why there was a significant delay in the submission of FY18 scrolls to DMPM. Scroll U01-18 was signed/published with an effective date of 1 June 2018, 10 days prior to the publication of U02-18. The Board agreed that as a matter of equity and in the absence of additional information, the applicant's DOR and effective date of promotion be adjusted no earlier than 25 May 2018. 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 and the Army National Guard records of the individual concerned be corrected by amending his date of rank and effective date of promotion to CW3 to 25 May 2018. 2. 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 any relief in excess of that described above. 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 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides in paragraph 4-18 except as provided in paragraph 4-18c below, only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion. Accordingly, except as provided herein, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s DOR and effective date of promotion. Paragraph 4-21 (Effective dates) except as provided elsewhere in this regulation, the effective date of promotion may not precede the date of the promotion memorandum. An officer is promoted after selection if all qualifications for promotion are met (chap 2 and paragraph 4-11). When an officer does not meet the qualifications for promotion (paragraph 4-11), the effective date of promotion will not be earlier than the later date all qualifications are met. In no case, will the DOR or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation. 3. 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) 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015729 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1