MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           26 June 2003                  
	DOCKET NUMBER:   AR2002080740

	I certify that hereinafter is recorded the record of consideration 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. Walter T. Morrison 		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Lawrence Foster 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, correction to his promotion effective date and date of rank for lieutenant colonel to 1 February 2002, with back pay and allowances.

APPLICANT STATES:  That he was mobilized effective 3 January 2002 and selected by the lieutenant colonel promotion board that was approved on 28 February 2002.  He was notified by headquarters, Department of the Army that a waiver of the maximum time in grade (MTIG) requirements for Individual Mobilization Augmentee (IMA) officers mobilized for a period of 6 months or more pertained to him.  In support of his application he submits copies of his IMA assignment orders, dated 6 December 2001, his Notification of Promotion Status memorandum, dated 28 February 2002, his mobilization orders, dated 17 September 2002, and Army Regulation 135-155, paragraph 4-15.

EVIDENCE OF RECORD:  The applicant's military records show:

He was appointed in the Reserve as a second lieutenant effective 17 December 1982.

He attained the rank of major effective 4 December 1995.  Based on the required 7 years time in grade, his MTIG date for promotion to lieutenant colonel was 3 December 2002.

He was considered and selected for promotion to lieutenant colonel by the 2001 Reserve Components Selection Board (RCSB), which convened on 5 September and recessed on 2 October 2001.  The President approved the board results on 1 February 2002.

Orders dated 28 December 2001, shows he was ordered (mobilized) to active duty with a reporting date of 3 January 2002.

The Chief, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion the applicant was recommended for promotion to lieutenant colonel by the 2001 RCSB and the board was approved on 28 February 2002.  The applicant’s status was Individual Ready Reserve (IRR) when the board considered him; however, after the board recessed on 2 October 2001, he was assigned to an IMA position in a higher graded position.  Officers in the IRR and IMA cannot be promoted until their MTIG date in accordance with Army Regulation 135-155, paragraph 4-15a.  Therefore, the earliest date the applicant could have been promoted was 3 December 2002.  The applicant was mobilized in his IMA position effective 3 January 2002 for 365 days.  On 16 October 2002, the Department of the Army granted a waiver of the time in 

grade requirements for those IMA officers who were mobilized for more than 6 months and were assigned to a designated IMA position in the higher grade, so that they could be promoted immediately.  Based on this policy, the applicant was promoted to lieutenant colonel effective 16 October 2002.  The policy was not in effect when the 2001 RCSB was approved on 1 February 2002 and it does not address retroactive promotions; therefore, it was recommended that the request be denied.

The opinion was forwarded to the applicant for acknowledgement/rebuttal on 22 January 2003.  In his rebuttal, dated 27 February 2003, he states that Army Regulation 135-155 referred to in the opinion states officers in the IRR and IMA cannot be promoted until their MTIG date.  This is a true statement only during peacetime operations but during wartime or upon mobilization of IMA officers the statement is incorrect because IMA officer are assigned to active Army wartime required positions not authorized in peacetime and they must already be attached/assigned to a position in the higher grade.  He also states that the 16 October 2002 Department of the Army waiver referred to in the advisory opinion was not necessary in this particular case as the Army Regulation is written properly and already takes into account the promotion consideration of mobilized IMA officers.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve and ARNG officers.  Paragraph 4-15a of the regulation specifies that the effective date of promotion for commissioned officers may not predate the date on which the promotion memorandum is issued.  In addition, IMA officers selected by a mandatory promotion board, must have completed the maximum years of service.

A waiver of Army Regulation 135-155, paragraph 4-15a specified that maximum time in grade requirements for IMA officers mobilized for a period of 6 months or more was effective 16 October 2002 (date the approval authority signed the policy).  This exception authorized the immediate promotion of those mobilized IMA officers who have been selected for promotion to a higher grade, and are assigned and/or attached to a designated IMA position that requires an officer of a higher grade.  There was no provision to allow for back pay of those mobilized officers prior to the implementation of this policy.  The effective date of promotion was the date the policy was signed, 16 October 2002.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to his promotion effective date and date of rank for lieutenant colonel with back pay and allowances.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes his contentions that a waiver of Army Regulation 135-155, paragraph 4-15a allows correction to his promotion effective date and date of rank for lieutenant colonel.  However, the policy implemented by the Department of the Army, effective 16 October 2002, allowed IMA officers mobilize for a period of 6 months or more promotion to their next higher grade before their MTIG date. The policy made no provision to allow for back pay of those IMA mobilized officers prior to the implementation of this policy.  The effective date of promotion for those IMA mobilized officers was 16 October 2002, the date the policy was signed.  Therefore, the applicant’s promotion effective date and date of rank for lieutenant colonel has been appropriately corrected to 16 October 2002.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_LF_____  _WTM___  __LE____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002080740	
SUFFIX		
RECON		
DATE BOARDED	20030626	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.