PROCEEDINGS

	IN THE CASE OF: 	

	BOARD DATE: 	      31 July 2003                  
	DOCKET NUMBER:      AR2002082976

	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. Gail J. Wire 		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Robert L. Duecaster		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 correction to his date of rank to lieutenant colonel (LTC) to 1 January 2000.

3.  The applicant states that his date of rank for LTC was 12 April 1993 [sic] and according to Title 10, United States Code (USC), section 14304, an officer recommended for promotion by a selection board shall be promoted on the date on which the officer completed the maximum years of service in grade.  Therefore, his promotion letter and date of rank should be amended to reflect 1 January 2000.  In support of his application he submits copies of his promotion orders for major and LTC and his assignment orders to a LTC position dated 25 March 1998.

4.  The applicant’s military records show that he was commissioned in the Regular Army as a second lieutenant effective 4 January 1980.  He was promoted to first lieutenant effective 4 July 1981.

5.  He was separated from active duty effective 27 May 1983 and transferred to the USAR Control Group (Reinforcement).

6.  He was ordered to active duty in the Active Guard/Reserve (AGR) program effective 16 September 1985.

7.  He was promoted to captain effective 3 January 1986 and to major effective 2 January 1993.

8.  He was assigned to an AGR LTC’s position effective 6 July 1998.

9.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for LTC was 1 January 2000.

10.  He was considered and selected for promotion to LTC by the 1999 Reserve Components Selection Board (RCSB), which convened on 8 September and recessed on 8 October 1999.  The President approved the board results on 12 April 2000.

11.  He was promoted to LTC with a promotion effective date and date of rank of 12 April 2000.

12.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion that the applicant’s date of rank for major was 2 January 1993.  Based on the 7 years time in grade, his promotion eligibility date was 1 January 2000.  The applicant 

was selected on the 1999 LTC RCSB and promoted with a date of rank of 12 April 2000.  The applicant went into a higher graded position on 6 July 1998.  The applicant was given the date of rank of 12 April 2000, the date the President approved the promotion board.  This is the earliest date of rank he can receive by their office.  It was recommended that the applicant’s request be denied.

13.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 20 May 2003.  He did not respond.

14.  The Reserve Officer Personnel Management Act (ROPMA), 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 LTC the MTIG for a major 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.  ROPMA further specifies that an AGR officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve.  Promotion cannot be effective prior to approval of respective boards by the President.

15.  The ROPMA promotion boards for LTC were administratively delayed.  In some cases 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.

16.  Title 10, United States Code, section 14304 specifies that 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. 

17.  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.  The applicant is entitled to adjustment of his date of rank for LTC to 1 January 2000, based on the processing delays of the 1999 promotion board.

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 12 April 2000, 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:

That all of the Department of the Army records related to this case be corrected by showing the individual concerned was promoted to lieutenant colonel effective 12 April 2000, with a date of rank of 1 January 2000, with no further entitlement to additional pay or allowances based on this adjustment.

BOARD VOTE:  

_GJW____  _RLD___  _KAH___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			 Gail J. Wire_______
		        CHAIRPERSON

INDEX

CASE ID	AR2002082976	
SUFFIX		
RECON		
DATE BOARDED	20030731	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.