ABCMR Proceedings (cont)                                                        AR2002081735

PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  2 October 2003
	DOCKET NUMBER:  AR2002081735

	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. Joyce A. Wright | | Analyst

  The following members, a quorum, were present:

| Ms. Kathleen A. Newman | | Chairperson
| Mr. John T. Meixell | | Member
| Mr. Lester Echols | | 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 that his date of rank (DOR) for first lieutenant     (1LT/0-2) be adjusted from 25 March 1996 to 25 March 1995 and his DOR for captain be adjusted from 1 March 2002 to 24 March 2000 per requirements outlined in the Reserve Officer Personnel Management Act (ROPMA).

3.  The applicant states that he was promoted to captain effective 1 March 2002; however; his eligibility date for promotion to captain was 24 March 2001, which should have been adjusted one year according to ROPMA.  He spent 3 years time in grade (TIG) as a second lieutenant (2LT/0-1), vice the 2 years TIG for promotion under current law.  His DOR for 1LT should be adjusted to 25 March 1995 and adjustment for CPT should be adjusted to 24 March 2000.  In support of his application, he submits copies of his:  active duty orders; Officer Record Brief (ORB); two promotion memorandums; separation orders; Oath of Office; and a copy of his promotion orders. 

4.  The applicant’s military records show he was commissioned as a 2LT/0-1 in the USAR on 26 March 1993, in the Chemical Corps.  He is currently serving on active duty in the rank of CPT with duty at Fort Hood, Texas on a 3-year voluntary indefinite status since 30 October 2002.

5.  He was promoted to the rank of 1LT on 25 March 1996.

6.  The applicant was considered and selected for promotion to CPT by the 
2001 Reserve Components Selection Board (RCSB), which convened on 
13 November 2001, adjourned on 14 December 2001, whose recommendations were approved by the President on 1 March 2002, and the results announced on 26 March 2002.

7.  The Total Army Personnel Command, St. Louis, issued a promotion memorandum, dated 26 March 2002, promoting the applicant to CPT with an effective date and DOR of 1 March 2002.  Another memorandum was later issued adjusting the applicant's DOR to 24 March 2001.

8.  The Chief, Special Actions, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) provided an advisory opinion.  The opinion stated that the applicant was commissioned in the USAR on 26 March 1993 as a 2LT in the Chemical Corps.  Promotion to 1LT required 3 years TIG; therefore, his promotion eligibility date (PED) was 25 March 1996 and was promoted on that date.  ROPMA became effective 1 October 1996 and changed the TIG requirement to 2 years; however, this law did not authorize retroactive adjustment of his DOR.  PERSCOM recommended that his request be denied in regards to his DOR adjustment for 1LT.  

9.  He was considered for promotion to captain by the 2001 RCSB.  Under ROPMA, an officer cannot be promoted until the President of the United States has approved the board.  The Board was approved on 1 March 2002 and results were announced on 26 March 2002.  A promotion memorandum was prepared on 26 March 2002, indicating his captain DOR as 1 March 2002, the approval date of the board.  The applicant's DOR for 1LT is correct and the applicant met the maximum TIG (MTIG) for promotion to CPT.  

10.  The applicant was provided a copy of the opinion for possible comment prior to consideration of his case.  The applicant responded within the time frame allotted and concurred on 30 June 2003.

11.  The Reserve Officer Personnel Management Act (ROPMA) was enacted effective 1 October 1996.  Among many other things, it required that second lieutenants (2LT’s) serve a maximum years of service in grade (MYIG) of 2 years before promotion to first lieutenant (1LT), and 1LT’s serve a MYIG of 5 years before promotion to captain.  The Reserve Officer Personnel Act in effect prior to ROPMA required completion of 3 years as a 2LT and 4 years as a 1LT before promotion to captain.

12.  The ROPMA promotion boards for captains were administratively delayed.  The Presidential approvals of the results of the pertinent promotion boards were also administratively delayed.  Based on normal processing, they should have been convened earlier and approved approximately 100 days after the respective recess dates.

13.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) acknowledged that pertinent Army agencies had agreed that the faulty promotion policy for promotion to captain should be revised, and that actions would be initiated for this purpose.  He further stated that affected individuals would be advised they could seek relief from the Army Board for Correction of Military Records (ABCMR) which could adjust DOR’s for those who were first-time considered and selected for promotion to captain, after having served more than 7 combined MYIG as a lieutenant.

14.  Army Regulation 135-155 (Army National Guard and U. S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-21a, states, “The effective date and date of promotion, to include officers recommended on a second or subsequent mandatory board, will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer meets maximum TIG, whichever is later.”  Pay 
and allowances are paid at the new rank based on the effective date.  Time in grade for consideration for promotion to the next higher grade is calculated from 

the DOR.  The officer’s records will be screened to determined eligibility for promotion to the next higher grade.  This will be determined far enough in advance to permit promotion on the date promotion service is completed.  The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to first lieutenant through lieutenant colonel.  

CONCLUSIONS:

1.  The Board notes the advisory opinion provided by PERSCOM that stated promotion to 1LT required 3 years TIG, with a PED of 25 March 1996, and the applicant was promoted on that date.  PERSCOM also stated that ROPMA became effective 1 October 1996 and changed the requirements to 2 years TIG for promotion to 1LT with no authorization for adjustment of DOR.  PERSCOM recommended that his request for change in DOR for 1LT be denied.

2.  The ROPMA provisions implemented on 1 October 1996 were never intended to change the statutory requirement then in effect, requiring an individual to serve 7 years, combined, in the ranks of 2LT and 1LT before being promoted to captain.  The applicant was unjustly and unfairly required to serve beyond the required MYIG.

3.  Although the applicant was selected for promotion to captain the first time he was considered after the enactment of ROPMA, the untimely promotion consideration and delay of his promotion created an injustice that should now be corrected.

4.  In addition to the foregoing, the Board concludes that the applicant was prevented from equitable promotion consideration, unlike others in his grade in earlier and later year groups who were considered before and after him, and was unjustly considered well after his eligibility.  He was eligible for promotion consideration prior to his MYIG date so that, if selected, he may have been promoted on or prior to his MYIG date.  He was unjustly required to serve in grade beyond the 7 years required by ROPMA and denied timely consideration.  The further delay for promotion board proceeding preparation and processing for Presidential approval compounded the unfair circumstances.  It is further concluded therefore, that had he been timely considered for promotion prior to his MYIG date, and based on his first-time consideration/selection, a reasonable chance would have resulted that he would have been selected and respectively promoted on or before his MYIG date, and entitled to an earlier promotion, DOR, and pay and allowances.

5.  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 of the individual concerned be corrected by showing he was promoted to captain with an adjusted DOR of 25 March 2000 and entitled to the pay and allowances in the higher grade on that date.

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

BOARD VOTE:  

__kn___  ___jm__  __le___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID | AR2002081735
SUFFIX |
RECON |
DATE BOARDED | 20031002
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | GRANT
REVIEW AUTHORITY |
ISSUES         1. | 21
2. |
3. |
4. |
5. |
6. |