IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20220002168 APPLICANT REQUESTS: adjustment to his Date of Rank (DOR) for Chief Warrant Officer Three (CW3). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number R-08-690286, 23 August 2016 * Unit Manning Report (UMR), 13 February 2018 * Fiscal Year (FY) 2018 Reserve Component (RC) CW3 Promotion Selection Board – Release, 12 September 2018 * Orders Number B-10-907232, 15 October 2019 * Email communication FACTS: 1. The applicant states in pertinent part that he was advised that he may be eligible to have his DOR adjusted. He notes that at the time of his promotion, the proponent (the U.S. Army Human Resources Command (HRC)) was not following the regulatory guidance wherein it provides that Active Guard/Reserve (AGR) Warrant Officers who are selected for promotion and currently assigned to a position of higher grade should be promoted immediately, and their DOR should correspond with the date the promotion results are released. To the contrary, HRC waited the maximum time in grade (TIG) as reflected within the regulatory guidance. 2. A review of the applicant's available service records reflects the following: a. After serving as an enlisted Soldier within the U.S. Army Reserve (USAR), on 29 July 2010, the applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). b. On 2 July 2013, the Army National Guard (ARNG) issued Orders Number 183-021 ordering the applicant to Active Duty for Training (ADT) to attend the Criminal Investigations Division (CID) Warrant Officer Basic Course from 8 September 2013 – 11 October 2013. c. On 24 July 2013, the applicant was appointed a commission as a Reserve Warrant Officer at the rank of Warrant Officer One (WO1). d. On 7 May 2014, the National Guard Bureau issued Special Orders Number 119 announcing Federal recognition of the applicant's promotion to Chief Warrant Officer Two (CW2), effective on with a DOR of 11 October 2013. e. On 29 December 2014, HRC issued Orders Number C-12-417626 reassigning the applicant to the 159th Military Police Battalion. f. On 23 August 2016, HRC issued Orders Number R-08-690286 ordering the applicant to active duty for a period of 3-years in an AGR status with a 1 October 2016 reporting date; assigned to 378th Military Police Detachment. g. On 30 September 2018, the applicant was released from active duty. h. On 9 October 2018, HRC issued Orders Number C-10-811550, reassigning the applicant to a CW2 position within the 378th Military Police Detachment (CID). i. On 28 August 2019, HRC issued Orders Number C-08-910888 reassigning the applicant to the 366th Military Police Detachment (CID), effective 10 September 2019. j. On 15 October 2019, HRC issued Orders Number B-10-907232 promoting the applicant to CW3, effective on with a DOR of 11 October 2019. k. On 3 January 2020, the applicant was ordered to active duty. l. On 5 February 2021, the applicant was released from active duty. m. On 17 November 2021, Headquarters, 88th Readiness Division issued Orders Number 21-321-00013 reassigning the applicant to the Retired Reserve, effective 11 February 2022. n. On 28 April 2022, HRC issued Orders Number C04-292873 retiring the applicant and placing him on the retired list, effective 31 December 2021. 3. The applicant provides the following a: a. UMR, 13 February 2018 reflective of the applicant (as a CW2) being assigned to a CW3 position within the 378th Military Police Detachment (CID), effective 1 October 2016. b. FY 2018 RC CW3 Promotion Selection Board – Release 12 September 2018, reflective of the applicant being identified within the AGR competitive category. c. Email communication reflective of information pertaining to the retroactive promotion of AGR Warrant Officers wherein it provides that in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) AGR warrant officers serving in a position of higher grade who have been selected by a Department of the Army (DA) selection board can be promoted prior to their six-year time-in-grade anniversary date. AGR warrant officers serving in a higher-grade position upon release of the promotion selection list are eligible for immediate promotion. AGR warrant officers not assigned to a position of a higher grade will be promoted once the six-year time-in-grade is reached or reassigned to a position of higher grade. The provided guidance did not apply to all former AGR warrant officers. Eligible officers must have been in the AGR program and in a position of higher grade when the board results were approved or subsequently transferred to a higher-grade position. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 and available military records, the Board determined based on regulatory guidance the applicant was not in a position of higher grade when the board results were approved or subsequently transferred to a higher-grade position. Therefore, the Board denied relief to adjustment the applicant’s Date of Rank (DOR) for Chief Warrant Officer Three (CW3). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The DOR will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 2. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10 United States Code, sections 624 and 741 provide for situations in which properly appointed officers 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. Department of Defense Instructions 1310.01 (Rank and Seniority of Commissioned Officers) (23 August 2013) provides that a Service Secretary may "adjust the DOR 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 to determine based on the available evidence, which often includes an advisory opinion. //NOTHING FOLLOWS//