PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 August 2001
         DOCKET NUMBER: AR2001052414


         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. John N. Slone		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Donald P. Hupman, Jr.		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.

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2. The applicant requests that his date of rank (DOR) for major be adjusted from 22 July 1997 to 30 April 1996.

3. The applicant states that his current DOR of 22 July 1997 is not in compliance with Title 10, United States Code (USC). He further states that the 1997 major Army Medical Department (AMEDD) Promotion List was released on or about 4 September 1997, and gave him a DOR of 22 July 1997, which is incorrect. His DOR for captain was 1 May 1989, therefore, according to Title 10 USC, Section 1430(3), his DOR for major should be 7 years later which means his DOR for major should be 30 April 1996, which was his promotion eligibility date (PED).

4. The applicant’s military records show that he was appointed in the Reserve, Medical Services Corps, as a second lieutenant effective 7 June 1985.

5. While on active duty he was promoted to captain effective 1 May 1989.

6. He was considered and not selected for promotion to captain by the 1995 active duty promotion board.

7. He was released from active duty effective 1 April 1996 and transferred to the USAR Control Group (Reinforcement).

8. His name was deleted from consideration by 1996 active duty board based on his separation.

9. He was released from the USAR Control Group (Reinforcement) effective 11 June 1996 and transferred to a troop program unit (TPU).

10. Based on the required 7 years maximum time in grade (MTIG) as a captain for promotion to major, his promotion eligibility date (PED) was 30 April 1996.

11. Based on the required 12 years of mandatory commissioned service, his PED for major was 6 June 1997. The latest date is used for promotion eligibility purposes. The required mandatory commissioned service was rescinded by the Reserve Officer Personnel Management Act (ROPMA) implemented on 1 October 1996.

12. The 1996 RCSB recessed on 9 February 1996, while the applicant was on active duty and not eligible for Reserve Component promotion consideration.






13. He was considered and selected for promotion to major by the 1997 Reserve Components Selection Board (RCSB) that convened on 14 January and recessed on 31 January 1997. The President approved the board on 22 July 1997. He was subsequently promoted to major effective 22 July 1997 with the same date as his DOR.

14. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation, in effect at the time, specifies that in order to be qualified for promotion to major an individual must have completed 7 years of MTIG as a captain and 12 years of commissioned service.

15. Under ROPMA, a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern 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 completed the maximum service. The years of commissioned service was no longer a prerequisite. ROPMA further specifies that the officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve for promotion on or prior to the MTIG.

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.”

17. A staff member of the Army Reserve Personnel Command, Military Personnel Actions Branch, expressed the opinion that unit officers recommended by a mandatory board will have a promotion date and effective date no earlier than the approval date of the board or the date of Senate confirmation (if required), provided they are assigned to a position in the next higher grade. When the board approval date or, if required, Senate confirmation is prior to assignment to the position in a higher grade, the effective date of promotion will be the date of assignment to a higher graded position (Title 10, United States Code, chapter 1405). The applicant was recommended by the 1997 AMEDD board and met all promotion qualifications prior to the approval date by the Secretary of the Army on 22 July 1997; therefore, the effective date of his promotion is correct. Based on this information, it was recommended the application be denied.





18. The opinion was forwarded to the applicant for rebuttal on 1 May 2001. In his rebuttal dated 14 May 2001, he states that his DOR for captain was 1 May 1989, and the 1997 AMEDD major board, which was released on 4 September 1997, selected him. His DOR was adjusted to the Senate Confirmation date of the Board, 22 July 1997. This is more that 8 years after his captain DOR. He further states that the Army realizes some officers have been disadvantaged by the transition to ROPMA. A decision has been made to allow captains disadvantaged by the change to ROPMA, he requests nothing different. He also states that he has been informed that there are other officers who have had their DOR’s adjusted to be in line with ROPMA.

CONCLUSIONS:

1. The applicant is entitled to adjustment of his DOR for major to 1 October 1996, the date ROPMA was implemented.

2. The Board notes his contentions, however, prior to the implementation of ROPMA, the applicant was not eligible for promotion to major until 6 June 1997, based on the required 12 years mandatory commissioned service. It is also noted that the applicant was on active duty and his release was subsequent to the 1996 promotion selection board that recessed on 9 February 1996.

3. Notwithstanding the opinion, in similar cases, the Board has adjusted the DOR of Reserve officers in the grade of major affected by the delay in the promotion process. The adjustments were based on these officers selected for promotion on their first consideration and meeting the 7 years time in grade requirement. The effective date of promotion for those officers remained the date the President actually approved the board and as shown on their promotion memorandums. The Board concludes that the applicant’s DOR should be adjusted to 1 October 1996, based on implementation of ROPMA and meeting the 7 years time in grade requirement, and the rescission of the requirement of completion of 12 years of commissioned service.

4. The Board further notes that his effective date for promotion to major of 22 July 1997, was not based on Senate confirmation, but on the Presidential approval of the board. This date remains unchanged.

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 related to this case be corrected by showing the individual concerned was promoted to major effective 22 July 1997 with a date of rank of 1 October 1996.

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

BOARD VOTE:

_dph____ _jns____ _rtd____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  John N. Slone
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001052414
SUFFIX
RECON
DATE BOARDED	20010828
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.