PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001065432


         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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) to the rank of major (MAJ) be adjusted to 1 November 1998.

3. The applicant states, in effect, that he was occupying a position requiring an officer in the rank of MAJ effective 1 November 1998. He furthers states that he was informed by his personnel management officer (PMO) at the Army Reserve Personnel Command (ARPERSCOM) that according to current policy, he was authorized an earlier DOR to MAJ because his promotion was in excess of 71/2 years and because he was in a position requiring the rank of MAJ.

4. The applicant’s military records show that he was commissioned as a United States Army Reserve (USAR) second lieutenant on 21 May 1984. He remained in the USAR and was ordered to active duty on 10 January 1988. He was promoted to the rank of captain (CPT) on 1 August 1991. He remained on active duty until 25 October 1998, when he was released from active duty due to non-selection for permanent promotion. He was transferred to the USAR Control Group (Reinforcement) and on 1 November 1998 entered active duty in the Active Guard/Reserve (AGR) Program. He was assigned to Fort Hood, Texas in a position requiring the rank of major.

5. On 3 January 2000, he was promoted to the rank of MAJ based on his being selected by the 1999 Reserve Components Major Selection Board, which convened on 2 March 1999 and was signed by the President on 3 January 2000. This was his first time being considered by a USAR Promotion Selection Board. Additionally, the memorandum which promoted the applicant to the rank of MAJ also indicated that the applicant was assigned to a position that was equal to or higher than the rank of MAJ.

6. In the processing of this case a staff member of the Board contacted officials at the ARPERSCOM Officer Promotions Branch to ascertain current policy regarding DOR issues involving officers who occupy a position equal to or greater than the pay grade in which they were selected, after having passed their MYIG. Officials at the ARPERSCOM opined that the applicant had been considered for the first time by the 1999 Reserve Components (RC) Major Promotion Selection Board based on his DOR to CPT in 1991 and under current policies, he should have his DOR adjusted to the date he occupied a position requiring the rank of MAJ, since he was not eligible for consideration by a Reserve Component Selection Board when he reached his MYIG.

7. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers of the USAR. Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the years required in the lower grade (MYIG) requirement for promotion to MAJ is 7 years.

8. Section III (Dates of Promotion) of the regulation provides the procedures for computing promotion effective dates of all RC officers. It states, in pertinent part, that unless otherwise entitled by law, that antedating of either the effective date of promotion or the PED will not entitle an RC officer to increased pay and allowances.

9. However, section III of the regulation does establish that the PED and DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade. In addition, it indicates that an officer’s PED will become his DOR upon promotion and this date will be used to establish the relative seniority for officer’s holding the same rank. Finally, it states that DOR will be used to establish the officer’s PED to the next higher grade.

10. Title 10 of the United States Code, section 14304 (10 USC 14304) provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law. Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the MYIG 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 those years of service. If the officer occupies a position equal to or higher than the grade to which they are being promoted, they may be promoted before they reach their MYIG. This provision of the law establishes the MYIG for CPT going to MAJ as 7 years.

11. Paragraph (b) of 10 USC 14304 states, in effect, that an RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law.

12. A separate provision of the law, 10 USC 12203 establishes, in effect, that
RC officers on a promotion list will be promoted when the report of the selection board is approved by the President. Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President. It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.
CONCLUSIONS:

1. At the time of the applicant’s REFRAD on 25 October 1998, he had 7 years and 4 months time in grade in the rank of captain. On 1 November 1998, he entered the AGR Program and was assigned to a position requiring the rank of major.

2. The legal provisions of 10 USC 14304 establish the MYIG for promotion to MAJ as 7 years and, in effect, that an RC officer who is selected for promotion to MAJ, if not promoted sooner, shall be promoted not later than the date they reach their MYIG. Therefore, the Board concludes, since the applicant attained his MYIG as a CPT while he was still on active duty and since he occupied a position requiring the rank of major on 1 November 1998, his MAJ DOR should be changed to this date and used in establishing his PED for consideration to the next higher grade.

3. Although the Board finds a legal basis to support adjusting the applicant’s DOR and PED and concludes that this action would be appropriate, this does not, by law, entitle the applicant to change in the effective date of his promotion or to any additional back pay or allowances.

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 that the DOR to MAJ and PED of the individual concerned is 1 November 1998.

BOARD VOTE:

____jm__ ___lds __ ___js____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _____John T. Slone_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001065432
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/21
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 315	131.0500/DOR
2.
3.
4.
5.
6.