PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           30 January 2003
	DOCKET NUMBER:   A2002076996

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.   The applicant requests, in effect, that her date of rank (DOR) to major (MAJ) be adjusted to 22 May 2002.

3.  The applicant states, in effect, that she was selected for promotion and placed on the 2002 Department of the Army (DA) Reserve Component (RC) MAJ Army Promotion List (APL), released on 16 July 2002.  She states that this list assigned her an incorrect DOR of 19 July 2002.  She also states that her captain (CPT) DOR was 23 May 1995, which established her Promotion Eligibility Date (PED) to MAJ as 22 May 2002 under maximum years in grade (MYIG) provisions of the law.  In support of her application, she provides a copy of her promotion memorandum to CPT and to MAJ.  

4.  The applicant’s military records show that she is currently serving in an Active Guard Reserve (AGR) status on active duty.  It also confirms that she was promoted to the rank of CPT on 23 May 1995, which established her PED to MAJ as 22 May 2002. 

5.  The applicant was considered for and selected for promotion by the 
2002 DA RC MAJ Promotion Selection Board.  This board convened on 4 March 2002, and the resultant selection list was approved and signed by the President on 19 June 2002.

6.  On 16 July 2002, a promotion memorandum pertaining to the applicant was published by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri, which notified the applicant that she was promoted to MAJ, effective 
19 June 2002, which was also established as her MAJ DOR.

7.  In connection with the processing of this case, the Board requested and received an advisory opinion from the Chief, Promotions and Notifications Branch, Office of Promotions, RC, PERSCOM, St. Louis.  It stated that the applicant was selected for promotion by the 2002, DA RC Promotion Selection Board and that her PED of 22 May 2002.  Further, the applicant was subsequently promoted to MAJ with a DOR of 19 June 2002, the date the list was approved by the President.  This promotion official opined that based on the fact that the applicant met the time in grade requirement on 22 May 2002, recommended that her promotion order be corrected to reflect a MAJ DOR of
22 May 2002 and a promotion effective date of 1 July 2002, the date she was assigned to a higher grade position.  The applicant was provided a copy of this advisory opinion in order to have the opportunity to respond.  On 1 October 2002, she provided her concurrence with the opinion.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers of the USAR.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the years required in the lower grade (MYIG) requirement for promotion to MAJ is 7 years.

9.  Section III (Dates of Promotion) of the regulation provides the procedures for computing promotion effective dates of all RC officers.  It states, in pertinent part, that antedating of the effective date of promotion will not entitle an RC officer to increased pay and allowances.  However, it does establish that the DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade and that an officer’s PED will become their DOR upon promotion and this date will be used to establish the relative seniority for officer’s holding the same rank.  Finally, it states that DOR will be used to establish the officer’s PED to the next higher grade.

10.  Title 10 of the United States Code, section 14304 (10 USC 1434) provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law. Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the MYIG so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  This provision of the law establishes the MYIG for CPT going to MAJ as 7 years. 

11.  A separate provision of the law, 10 USC 12203 establishes, in effect, that 
RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President.  It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that her DOR for MAJ should be corrected from 27 January 2001 to 31 August 1998, and finds this claim has merit.

2.  Although the Board finds a legal basis to support adjusting the applicant’s DOR and PED, and it concludes that this action would be appropriate, by law, this does not entitle her to a change in the effective date of her promotion or to any back pay or allowances.  

3.  In addition, although the advisory opinion recommends and the applicant concurred that the effective date of her promotion should have been 1 July 2002 instead of 19 June 2002, given the applicant did not request an adjustment to her promotion effective date and this change would negatively impact the applicant, the Board elected not to make a recommendation on this issue.  

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the DOR to MAJ and PED of the individual concerned is 22 May 2002.

BOARD VOTE:  

__WTM__  __CJP  _  __YM  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Walter T. Morrison_  __
		        CHAIRPERSON

INDEX

CASE ID	AR2002076996	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/30	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.0500	
2.		
3.		
4.		
5.		
6.