IN THE CASE OF:
BOARD DATE:  19 September 2022
DOCKET NUMBER: AR20220001323 


APPLICANT REQUESTS: correction of his date of rank (DOR) and effective date of grade to chief warrant officer three (CW3) from 24 January 2020 to 11 January 2018. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 


•DD Form 149 (Application for Correction of Military Record)•Orders 261-520, Army National Guard (ARNG) Element,18 September 2017•Memorandum, ARNG, 5 July 2017•Action Memo, Assistant Secretary of the Army Manpower and Reserve Affairs, 7 January 2020•Appointment Scroll, Secretary of Defense, 24 January 2020

FACTS: 

1.The applicant states, in effect, he requests correction of his DOR and effective dateof grade in accordance with Army Regulation 135-155 (Promotion of CommissionedOfficers and Warrant Officers Other than General Officers), paragraph 4-18c andNational Guard Regulation 600-101 (Warrant Officers Federal Recognition (FEDREC)and Related Personnel Actions), paragraph 7-2h.

a.When his promotion packet was involuntarily delayed, there was no longer abasis or reason to delay his promotion. His promotion was initially delayed for 9 months. In accordance with National Guard Regulation 600-101, the process for reviewing a promotion packet and publication of FEDREC normally takes 120 days to complete. However, due to the Promotions and Exemplary Conduct Certification screening process, his packet review took 9 months. After 9 months, his packet was referred by the National Guard Bureau (NGB) to a Promotion Review Panel (PRP).  

b.From the date the PRP was conducted to the date of FEDREC, an additional16 month delay occurred. His DOR and effective date of grade was established 28 months from the date his promotion packet was submitted to the NGB for FEDREC. Since there was no basis for delay at the time the involuntary delay occurred, he believes the delay to be unjustified. Therefore, he requests a DOR and effective date to be established as if no involuntary delays occurred.  


2.After serving as an enlisted Soldier, he was appointed in the ARNG as a warrant officer on 26 September 2009.3.On 24 January 2011, Special Orders # 13 AR extended him FEDREC recognizing his appointment as a warrant officer within the ARNG with an effective date of25 November 2010.4.On 15 December 2011, Orders 349-516, issued by the State, promoted him to the rank of Chief Warrant Officer Two (CW2).5.On 23 March 2012, Special Orders # 96 AR, extended him FEDREC recognizing his promotion to the rank of CW2 effective 16 March 2012.6.On 2 May 2014 he completed the Warrant Officer Advance Course (WOAC).7.Memorandum from the Commandant, PRARNG Language Center, 5 July 2017, for the Chief, NGB, recommended the applicant for promotion to CW3.8.On 12 September 2017, Orders 255-509, show the State promoted him to the rank of CW3 with an effective date of 22 August 2017.9.On 13 July 2018, a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated on the applicant for removal from Selection List – Field Initiated, effective 24 May 2018.10. ARNG Element Orders 261-520 dated 18 September 2017, show the State promoted the applicant to CW3 effective 22 August 2017.11.Action Memorandum, dated 7 January 2020, from the Assistant Secretary of the Army Manpower and Reserve Affairs nominated the applicant for promotion to CW3.12.Secretary of Defense Appointment Scroll appointed the applicant to CW3 on24 January 2020.13.On 4 March 2020, Special Order # 68 extended FEDREC recognizing his promotion to the rank of CW3 effective 24 January 2020.


BOARD DISCUSSION: 

1.The effective date of promotion is established under law by Title 10, U.S. Code andis approved by the SECDEF. This Board, acting under the authority of the Secretary ofthe Army, does not have the authority to change the effective date. However, foradministrative purposes, such as time in grade for promotion consideration, this Boardmay adjust an officer's DOR. Such an adjustment does not affect the effective date ofpromotion for the purpose of pay and allowances.

2.After reviewing the application and all supporting documents, the Board found thatpartial relief was warranted. The applicant’s contentions, the military record, andregulatory guidance were carefully considered. The Board also considered the findingsof the NGB advisory opinion. One possible outcome was to provide relief based uponthe applicant’s statement; however, this Board agreed the authority to promote servicemembers exceeds their authority. The authority to remedy errors or injustices inreference to dates of rank and effective dates of rank for pay and allowances affectingpromotions is given to the Service Secretaries. As such, the ABCMR possesses theauthority to adjust the effective date of rank/promotion in this case. The Boardconcurred with the advisory officing finding that there was sufficient documentation togrant partial relief and amend the effective date of rank to chief warrant officer three(CW3) to 1 June 2018.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X    :     :       GRANT FULL RELIEF 

:     :X    :X      GRANT PARTIAL RELIEF 

:     :     :       GRANT FORMAL HEARING 

:     :     :       DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 





Microsoft Office Signature Line...
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, U.S. Code, Section 14308(f) (Effective Date of Promotion after FederalRecognition) states that the effective date of a promotion of a Reserve CommissionedOfficer of the Army or the Air Force who is extended FEDREC in the next higher gradein the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be thedate on which such FEDREC in that grade is so extended. Further stated is that if theSecretary concerned determines that there was an undue delay in extending FEDRECin the next higher grade in the ARNG or the Air National Guard to a ReserveCommissioned Officer of the Army or the Air Force, and the delay was not attributableto the action (or inaction) of such officer, the effective date of the promotion concernedmay be adjusted to a date determined by the Secretary concerned, but not earlier thanthe effective date of the State promotion.

2.National Guard Regulation 600-101 provides that Warrant Officers of the ARNG areappointed and promoted by the States under Article 1, Section 8 of the United StatesConstitution. In order for a warrant officer to be concurrently appointed, promoted, orreceive a military occupational specialty re-designation as a Reserve Warrant Officer ofthe Army, the State's action must be Federally Recognized. FEDREC is the process,which ensures that an officer appointed, promoted, or re-designated to an authorizedgrade and position vacancy in the ARNG, meets the prescribed laws and regulations.

3.The ABCMR may correct an officer's date of rank/effective date of rank when aproper appointment has already occurred.

a.Title 10 USC 624 and 741 provide for situations in which properly appointedofficers are provided "backdated" dates of rank 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. 

b.DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjustthe date of rank of an officer appointed to a higher grade if the appointment of that officer to the higher grade is delayed by unusual circumstances." 

c.What constitutes "unusual circumstances" will, generally, be for the Board todetermine based on the available evidence, which often includes an advisory opinion. 

d.There may be cases (specifically correction of constructive credit that affectsoriginal appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 
4.Army Regulation 135-155 states that the minimum time in grade for promotion toCW3 based on a position vacancy board, the minimum years of service at the lowergrade is 5 years; mandatory board maximum years in the lower grade is 6 years.Completion of the WOAC is also an educational requirement for promotion to CW3.

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