PROCEEDINGS

	IN THE CASE OF:	   

	BOARD DATE:           13 March 2003                  
	DOCKET NUMBER:   AR2002077000

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John A. Kelley		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, correction to his promotion date and date of rank for major to 22 June 2001. 

3.  The applicant states that his promotion to captain was 23 June 1994 and the time in grade requirement for promotion to major is 7 years from date of last promotion.  He also states that his promotion to major should have been 22 June 2001.  Through no fault of his own, he went past the mandatory requirement for time in grade for promotion to major.  In support of his application he submits copies of his promotion memorandums for captain and major.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 25 June 1987.

5.  He was promoted to the grade of captain effective 23 June 1994.  

6.  On 18 June 1999, he was ordered to active duty in Active Guard/Reserve (AGR) status.

7.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to major was 22 June 2001.

8.  The Officer Management Division, Army Reserve Personnel Command verified that he went into an AGR major position effective 9 August 1999.

9.  He was considered and selected for promotion to major by the 2001 Reserve Components Selection Board (RCSB), which convened on 6 March 2001.  The President approved the board results on 27 June 2001.

10.  The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern the management of Reserve component officers.  The law was implemented on 1 October 1996.  ROPMA provides that in order to be eligible for promotion to major the MTIG for a captain is 7 years, and that an officer selected for the first time for promotion to the next higher grade may be promoted on or before the date that he/she completes the maximum service.  Promotion cannot be effective prior to approval of respective boards by the President.

11.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that time in grade for a commissioned officer is 7 years in the grade of captain for promotion to major. The regulation also specifies that an officer shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing 

the years of service in grade 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 the required years of service.  

12.  Title 10, United States Code, section 14308(c)(2) states that “Except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion.”

13.  The Chief, Promotion and Notifications Branch, Office of Reserve Promotions, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant was promoted to major effective 27 June 2001.  Promotion to major requires 7 years time in grade; therefore, his promotion eligibility date to major was 22 June 2001.  He was considered for promotion to major by the 2001 major RCSB and recommended for promotion.  Under ROPMA, an officer cannot be promoted until the President approved the board.  The President approved the board on 27 June 2001 and the results were released on 26 July 2001.  He was issued a promotion memorandum on 26 July 2001, with a date of rank of 27 June 2001 since this was the day the President approved the board.  This is the earliest date the officer could receive.  Based on this information, it is recommended that the applicant's request be denied. 

14.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 23 September 2002.  He did not respond.

CONCLUSIONS:

1.  Notwithstanding the opinion from the PERSCOM, the applicant is entitled to adjustment of his date of rank for major to 22 June 2001, his MTIG date and in accordance with the ROPMA.

2.  The processing of the promotion board results was administratively delayed through no fault of the applicant, and he should not be penalized for the delay.

3.  Notwithstanding the delay, the effective date of promotion shall remain as 27 June 2001, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the antedated date of rank.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the individual concerned was promoted to major effective 27 June 2001, with a date of rank of 22 June 2001, with no further entitlement to additional pay or allowances based on this adjustment.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__TAP__  _RWA___  _JAK____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Thomas A. Pagan
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002077000	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020313	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL RELIEF GRANTED 	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.