PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 2 October 2001
         DOCKET NUMBER: AR2001056353


         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
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Karol A. Kennedy		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 for promotion to lieutenant colonel (LTC) be corrected from 30 August 2000 to 13 April 1999.

3. The applicant states that his promotion should be effective 13 April 1999, as indicated on the memorandum from the U. S. Total Army Personnel Command (PERSCOM) - St. Louis, dated 9 May 2000, subject: Notification of Promotion Status. He later received a memorandum from PERSCOM, dated 13 October 2000, subject: Promotion as a Reserve Commissioned Officer of the Army, announcing that his promotion was effective 30 August 2000. He provides copies of these memoranda.

4. The applicant’s military records show that he was a major in the Army Reserve serving in a Troop Program Unit (TPU), the 2d Simulation Group,
1^st Brigade (Battle Command Staff Training), 85^th Division, as a staff observer/controller, a position authorized for a major (MAJ). His date of rank (DOR) for major was 14 April 1992.

5. On 13 April 1999, he completed 7 years’ time in grade as a major. Under the rules of the Reserve Officer Personnel Management Act (ROPMA), a Reserve major must be considered by a promotion board for promotion to LTC before
7 years’ time in grade which, under ROPMA, is termed maximum years of service in grade (MYSIG). Reserve majors who reached MYSIG between
2 January 1999 and 1 January 2000 were first-time considered for promotion to LTC by the 1998 Army Reserve Mandatory Promotion Selection Board. The applicant was not identified to this board for consideration, apparently due to oversight. The 1998 board convened on 9 September 1998, adjourned on
9 October 1998, and the board recommendations were approved on 24 February 1999. The applicant was identified to the 1999 Army Reserve Mandatory Promotion Selection Board and selected for promotion to LTC. The 1999 board convened on 8 September 1999, adjourned on 8 October 1999, and the board recommendations were approved on 12 April 2000. By memorandum dated
9 May 2000, the applicant was notified of his selection for promotion. The memorandum informed him, in paragraph 1, that his promotion eligibility date was 13 April 1999. In paragraph 3, he was informed that if he was assigned to a TPU, he must be assigned to a duty position authorized a LTC, in order to be promoted. He was not at that time serving in a LTC position and, therefore, was not in a promotable status.








6. On 30 August 2000, the applicant voluntarily transferred from his TPU to the Individual Ready Reserve (IRR). He was then in a promotable status. On
13 October 2000, PERSCOM published a memorandum promoting the applicant to LTC in the IRR, effective 30 August 2000, the day he attained promotable status.

7. The Reserve Officer Personnel Management Act (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 became effective 1 October 1996. Under this law, when a Reserve major attains 7 years’ service in grade, termed maximum years of service in grade (MYSIG), the officer will be considered for promotion to the next higher grade by a promotion board far enough in advance to completing the MYSIG so that if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer completes the MYSIG.

8. Under ROPMA, the effective date of promotion and date of rank should be
the MYSIG date if the promotion board’s recommendation is approved before the MYSIG. If the promotion board’s recommendations are approved after the MYSIG, the effective date of promotion and date of rank will be the date that the board’s recommendations are approved. An officer in a Troop Program Unit (TPU) must be assigned to the next higher-grade position to be promoted to the next higher grade. If the date of assignment to the next higher grade is after the MYSIG or the promotion board’s recommendation approval date, the date the officer is assigned to the position will become the promotion effective date and the date of rank. If after being approved for promotion, a TPU officer is not in a higher graded position required for promotion and the TPU officer transfers to an active non-unit status (such as the Individual Ready Reserve (IRR) or Individual Mobilization Augmentee (IMA)), the officer is promoted effective on the date of the transfer. Promotions are made, provided that the officer meets all other qualifications for promotion.

9. Promoted officers receive pay and allowances in the higher grade beginning on the effective date. However, ROPMA, as stated in the law, Title 10, United States Code, section 14308, specifically states that a Reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion (date of rank) is adjusted to reflect a date earlier than the actual date of the officer’s promotion.







10. The Chief, Promotions and Notification Branch, PERSCOM – St. Louis, provided an advisory opinion that the applicant’s promotion effective date,
30 August 2000, was correct, as that was the date he transferred from a major’s position in a TPU to the IRR and attained promotable status. The applicant was provided a copy of this opinion by letter dated 9 July 2001, but he has not provided a response to this opinion.

CONCLUSIONS:

1. Having attained his MYSIG on 13 April 1999, under ROPMA rules, the applicant should have been considered for promotion by the 1998 Army Reserve Mandatory Promotion Selection Board which convened 9 September 1998 and whose recommendations were approved on 24 February 1999, in time for the applicant to be promoted to LTC on 13 April 1999. Due to oversight and not due to any fault of the applicant, he was not identified to a promotion board until
8 September 1999, after his MYSIG. Consequently, he was not notified of promotion selection until 9 May 2000. This late selection and notification error prevented him from obtaining a higher graded position or transferring to the IRR in a timely manner to attain a promotable status to be promoted on 13 April 1999, according to ROPMA rules.

2. To correct this error, as a matter of justice, the applicant should be considered for promotion by a Special Selection Board (SSB) under the 1998 Army Reserve Mandatory Promotion Selection Board criteria. If selected by this board, his DOR for LTC should be changed to 13 April 1999, his MYSIG date. However, law does not authorize pay and allowances at the LTC rate between 13 April 1999, while he served as a major and before his transfer to the IRR and a promotable status as a LTC on 30 August 2000.

3. If not selected by the SSB indicated in the prior paragraph, his DOR for LTC should remain 30 August 2000, the date he transferred to the IRR and became eligible for promotion to LTC according to ROPMA rules.

4. 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 for the individual concerned, as an exception to policy, by considering him for promotion to LTC by an SSB under the 1998 Army Reserve Mandatory Promotion Selection Board criteria and, if selected by that board, change his DOR to 13 April 1999.

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

BOARD VOTE:

__mp___ __rd____ __kk____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Margaret K. Patterson___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001056353
SUFFIX
RECON
DATE BOARDED	20011002
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PART
REVIEW AUTHORITY
ISSUES 1.	102.07 – Date of Rank
2.
3.
4.
5.
6.