PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            3 June 2003                  
	DOCKET NUMBER:   AR2002078804

	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:

	Ms. Joann H. Langston 		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Paul M. Smith		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 effective date and date of rank for major from 10 December to 17 June 1997.

3.  The applicant states that when he was selected for promotion in 1997, his higher headquarters advised his unit that the applicant was not in a promotable position.  When his unit was in the process of being deactivated, he was acting as a back fill unit and was slotted as the initial company commander.  Both positions were major positions and the commander slot could not be left vacant.  Therefore, his unit was advised that he was not assigned to a valid position for promotion.  The 5064th unit claimed they had assigned him to an overstrength position effective 1 July 1995, which is impossible.  In support of his application he submits copies of his assignment orders, a memorandum from his Reserve command, his officer records brief, copies of one completed and signed USARC Form 56-R (Promotion Qualification Statement) and one unsigned USARC Form 56-R, and his assignment orders.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 20 July 1983.

5.  He attained the rank of captain effective 18 July 1990.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to major was 17 July 1997.

6.  Orders dated 26 September 1995, show he was assigned to a separate Military Intelligence Company effective 1 September 1995.  Effective 16 October 1995 he assumed the position of company commander. 

7.  His Personnel Qualification Record, dated 8 January 1997, shows he was assigned to a command position effective 1 September 1995, with an authorized grade of major.

8.  He was considered and selected for promotion to major by the 1997 Reserve Components Selection Board (RCSB).  The President approved the board results on 27 August 1997.

9.  On 2 October 1997, the Headquarters, Army Reserve Command advised the applicant that he was not in a promotable status because he was not assigned to a valid major position.

10.  A USARC Form 56-R, dated 8 November 1997, shows he was assigned to a major position effective 16 September 1997.  Another USARC Form 56-R, which 

is incomplete, shows he was assigned to position #9995 (overstrength) effective 1 September 1995. 

11.  He was issued a promotion memorandum dated 10 December 1997, showing that date as his promotion effective date and date of rank for major.

12.  The Chief, Promotion and Notifications Branch, Office of Reserve Promotions, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant was considered for promotion to major by the 1997 RCSB and recommended for promotion.  The President approved the board on 27 August 1997.  Since the Reserve Officer Personnel Management Act (ROPMA) had just become effective on 1 October 1996, it was unclear how date of rank should be established; therefore, it was determined that the date of rank would be the date of the promotion memorandum.  Subsequently, their office issued a promotion memorandum on 10 December 1997 with a promotion effective date and date of rank of 10 December 1997.  The applicant submitted copies of a completed and signed USARC Form 56-R showing that he was assigned to the position requiring the higher grade effective 16 September 1997. Based on further clarification as to how dates of rank will be established; the officer’s date of rank should be corrected to 16 September 1997.  It was recommended that correction to his date of rank in excess of 16 September 1997 be denied.

13.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 21 February 2003.  In his rebuttal dated 3 March 2003, the applicant states that as part of his records correction package he included specific documentation from his former chain of command demonstrating that his promotion to major was initially delayed because he was incorrectly identified as being slotted in an excess (9999) position.  He also states that he was both commander of the 906th Military Intelligence Company and Company C, 378th Military Intelligence Battalion, and both positions had an authorized grade of major.  He again request that his major promotion date be corrected to 17 July 1997.

14.  The 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.

15.  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.  

16.  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.”

CONCLUSIONS:

1.  Notwithstanding the opinion from the PERSCOM and in other cases such as this, the applicant is entitled to adjustment of his date of rank for major to 17 July 1997, his MTIG date and in accordance with the ROPMA.

2.  The effective date of promotion shall remain as 27 August 1997, 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.

3.  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 August 1997, with a date of rank of 17 July 1997, 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:  

_JHL___  _JLP____  _PMS__     GRANT AS STATED IN RECOMMENDATION
 
________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_     Joann H. Langston ____
		        CHAIRPERSON

INDEX

CASE ID	AR2002078804	
SUFFIX		
RECON		
DATE BOARDED	20030603	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.