PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 December 2001
         DOCKET NUMBER: AR2001060045


         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. JoAnn H. Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Eric N. Andersen		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, in effect, correction to his date of rank (DOR) for major to 1 April 1995.

3. The applicant states, in effect, his DOR should be the time he reached 7 years time in grade as a captain, which was 1 April 1995, as per the Reserve Officer Personnel Management Act (ROPMA) and Army Regulation 135-155, paragraph 4-19(e). He submits copies of his promotion orders for captain and major and appointment and promotion orders for the Regular Army and Reserve in support of his application.

4. The applicant’s military records show that he was appointed in the Reserve as a second lieutenant (officer active duty obligor) effective 11 May 1984.

5. While serving on active duty he attained the rank of captain effective 1 April 1988.

6. He was honorably separated from active duty effective 1 June 1995 and appointed in the Reserve as a captain effective 2 June 1995.

7. Based on the required 7 years time in grade (TIG) as a captain, his promotion eligibility date (PED) for major was 30 March 1995 and based on the 12 years total commissioned service (TCS) requirement his PED for major was 10 May 1996. His PED was 10 May 1996, based on the latest PED, upon completion of both requirements.

8. He was erroneously not considered for promotion to major by the 1996 Reserve Components Selection Board (RCSB).

9. He was considered and selected for promotion to major by 1997 RCSB. The President approved the results of the board on 27 August 1997.

10. A promotion memorandum dated 2 October 1997 was issued to him showing 27 August 1997 as his effective date and date of rank for major.

11. Based on a review by the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), the applicant’s promotion file will be submitted to a special selection board under 1996 criteria upon receipt of his officer evaluation reports (OER’s).

12. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation provides that an officer is eligible for promotion to major upon completion of the required 7 years time in grade and 12 years of commissioned service. An officer will not be considered for a


Reserve promotion until at least 1 year after the date of return to an active Reserve status. Paragraph 4-19(e) of the regulation also specifies that an officer selected by a mandatory board may have a PED prior to the adjourning date of the board. The officer’s effective date would be the adjourning date of the board by which recommended or the adjourning date of the SSB criteria by which recommended. It also specifies that promotion consideration is required prior to an individual’s PED so that, if selected, an individual may be promoted on or before his/her PED.

13. The 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 maximum years in grade 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 completes the maximum service. ROPMA further species that the officer serving in a unit must be serving in a position requiring the higher grade.

14. Title 10, United States Code, chapter 1405, provides for promotion of officers selected for the first time by an RCSB at any time on or before their maximum time in grade date.

15. The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant is not eligible for a DOR adjustment based on the 7 years time in grade. He was considered and selected by the 1997 RCSB under the ROPMA with a PED of 2 June 1995, based on his release from active duty on 1 June 1995. He was subsequently promoted to major with a DOR of 27 August 1997, the date the President approved the board.

16. He also states that the applicant was in the zone of consideration by the 1996 RCSB with a PED of 10 September 1996 (sic), based on the 12 years TCS requirement. The 1996 promotion board was prior to ROPMA; therefore, his PED is based on Army Regulation 135-155, table 2-1. The table states an officer will be promoted on the date he meets the TIG in grade and TCS requirements provided he is recommended for promotion by the selection board that considered him for promotion. The applicant met the TIG requirement on 1 March 1995 [sic] and the TCS requirement on 10 September 1996 (sic); therefore, his earliest PED is 10 September 1996 (sic). Since the applicant was in the zone for promotion consideration by the 1996 RCSB his file will be submitted to an SSB for promotion consideration under the 1996 criteria upon receipt of his OER’s. If selected for promotion by the SSB his promotion order



will be corrected to reflect a DOR of 10 September 1996 (sic). If not selected for promotion by the SSB he should be issued a corrected promotion order with a DOR of 10 September 1996 (sic) and an effective date of 27 August 1997. Based on the facts presented, it was recommended his request for a DOR based on the 7 years TIG be disapproved.

17. The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 4 September 2001. In his rebuttal dated 18 September 2001, he states that he concurs with adjusting his DOR for major to 10 September 1996. He also states that he would like his packet to appear before the lieutenant colonel board scheduled for September 2002.

CONCLUSIONS:

1. Notwithstanding the opinion from the PERSCOM, the applicant is entitled to adjustment of his DOR for major to 10 May 1996, the date he completed the required 12 years TCS. The opinion erroneously states the TCS date as 10 September 1996.

2. The applicant is not entitled to a DOR earlier than 10 May 1996, as he had not completed the required 7 years TIG and 12 years TCS. He did not meet the TCS requirement for promotion to major until 10 May 1996.

3. The Board notes that the applicant was erroneously not considered for promotion to major by the 1996 RCSB. Given the fact that he has been identified to an SSB for promotion consideration under 1996 criteria upon receipt of his OER’s and if the result of that board is favorable, his effective date may also be adjusted to the adjourning date of 1996 promotion selection board.

4. It is further noted that his request for promotion consideration to lieutenant colonel by the 2002 RCSB will be based upon his completion of the required 7 years TIG as a major. With an adjusted DOR for major of 10 May 1996, his PED for lieutenant colonel will be 9 May 2003 and may receive mandatory promotion consideration in advance of his PED in order to be promoted on or before his PED.

5. It is concluded that his DOR for major should be adjusted to 10 May 1996 based on meeting the TCS requirement, and his effective date will remain 27 August 1997, the date the President approved the board results, which recommended the applicant.

6. The Board further concludes that should the applicant be considered and selected by an SSB under 1996 criteria, he may be eligible for an earlier effective date for promotion to major.

7. 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 with a date of rank of 10 May 1996.

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

BOARD VOTE:

_jhl___ _mkp____ _ena____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           JoAnn H. Langston
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060045
SUFFIX
RECON
DATE BOARDED	20011204
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.