PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002068793


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Lana E. McGlynn		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, that his major/0-4 (MAJ/0-4) date of rank (DOR) be adjusted.

3. The applicant states, in effect, that based in his promotion eligibility date (PED) for MAJ/0-4, his DOR to MAJ/0-4 and his PED to the next higher grade be adjusted to 30 April 1998 under the provisions of the Maximum Years In Grade (MYIG) promotion criteria established by the Reserve Officer Personnel Management Act (ROPMA).

4. The applicant’s military records show that he is currently serving on active duty in an Active Guard Reserve (AGR) position with the United States Army Reserve Readiness Command, Fort Jackson, South Carolina. It also confirms that he was promoted to the rank of captain (CPT) 1 May 1991, which established his PED for MAJ as 30 April 1998, based on his having attained the
7 years MYIG requirement established by law.

5. On 15 March 1998, the applicant assumed an authorized MAJ/0-4 position in the AGR. He was selected for promotion to MAJ/0-4 by the 1998 Reserve Component (RC) MAJ promotion selection board that was approved on
31 August 1998, and released on 24 September 1998.

6. A promotion memorandum pertaining to the applicant, dated 24 September 1998, published by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri, authorized his promotion to the rank of MAJ/0-4, effective 31 August 1998, which was also the date established as his DOR.

7. In connection with the processing of this case, an advisory opinion was requested of and received from PERSCOM, St. Louis, dated 2 April 2002. In effect, PERSCOM promotion officials opined that because the ROPMA prohibits the promotion of an officer prior to the approval of the list, and since the applicant’s promotion list was not approved by the President until 31 August 1998, which was the date established as his DOR, his request should be denied.

8. On 22 April 2002, the applicant was provided a copy of the PERSCOM advisory opinion in order to have the opportunity to respond. To date, he has failed to reply.

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9. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).

10. Chapter 2, section III (Board Consideration), states that boards will convene each year and will consider officers on the Reserve Active Status List (RASL) for promotion to captain through lieutenant colonel without regard to vacancies in the next higher grade. It also states, in pertinent part, that the first consideration for promotion will occur well in advance of the date the officer will complete the TIG requirements in table 2-1 or table 2-3, as appropriate. Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the maximum years required in the lower grade (MYIG) requirement for promotion to MAJ/0-4 is 7 years.

11. Chapter 4, section III (Dates of Promotion) does state that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued, and the promotion memorandum will not be issued prior to promotion board results being approved and/or confirmed by the Senate (if required). In addition, Title 10 of the United States Code, section 12203 (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 him to additional pay or allowances.

12. 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. This provision of the law establishes the MYIG for CPT going to MAJ as 7 years. Paragraph (b) states, in effect, that a 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 be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law.

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CONCLUSIONS:

1. The Board notes and agrees with the comments contained in the PERSCOM advisory opinion that state that the ROPMA prohibits the promotion of an officer prior to the approval of the list. However, it does not find this is the determinate operative law pertaining to DOR adjustments, as in this case.

2. In the opinion of the Board, although the effective date of a USAR officer’s promotion cannot be prior to the approval date of the Board, this does not preclude a change to the applicant’s DOR in the interest of equity, based on MYIG provisions of the law, in order to allow him to remain competitive with his peers.

3. By law and regulation, officers will be placed in a promotion zone and shall be considered for promotion to the next higher grade by a promotion board 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. In addition, the law stipulates that an officer in the Army Reserve who is on a promotion list as a result of selection for promotion by a mandatory promotion board may be promoted at any time to fill a vacancy in a position to which the officer is assigned.

4. The Board finds a legal basis to support adjusting the applicant’s DOR and PED to the next higher grade, and it concludes that taking this action at this time would be appropriate. However, the law mandates that his promotion effective date can not be prior to the date the promotion list was approved by the President, as indicated in the PERSCOM advisory opinion. Therefore, the Board concludes there should be no change to the applicant’s promotion effective date, and that he is not entitled to any back pay and allowances as a result of the Board’s recommended change to his DOR.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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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 to the next higher grade of the individual concerned is 15 March 1998.

BOARD VOTE:

__FNE__ __ TSK _ __LEM __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Fred N. Eichorn _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002068793
SUFFIX
RECON
DATE BOARDED	2002/08/13
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 21	102.0700
2.
3.
4.
5.
6.