PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002074340


         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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 date of rank to Major be adjusted to reflect selection from the 1997, not the 1998, US Army Reserve Major Promotion Selection Board.

3. The applicant states, in effect, he was a two-time non-select for promotion to Major by the 1995 and the 1996 Active Component Majors Promotion Selection Board. Because he was non-selected for promotion, he was given a mandatory release date (MRD) [mandatory release from active duty date (REFRAD)] of
1 January 1997. He requested that he remain on active duty beyond this mandatory REFRAD date. His request was approved based on the needs of the Army, and based on the needs of the West Point English Department. He was allowed to remain on active duty until 30 June 1997. Remaining on active duty until 30 June 1997 delayed his selection for promotion to Major until 1998. He was promoted to Major in August 1998 after serving 9 years and 4 months as a full time Captain which exceeds the maximum ROPMA (Reserve Officer Personnel Management Act) criteria by over 2 years.

4. The applicant submitted the following in support of his application: Orders Number 33-055, US Total Army Personnel Command, dated 3 March 1989; Memorandum, Subject: Release from Active Duty, dated 9 July 1996; Orders 226-0002, United States Military Academy, dated 13 August 1996; Memorandum, Subject: Request for Recall to Active Duty with 2 endorsements; Memorandum, Subject: Extension Beyond Mandatory Release Date (MRD); Unclassified Message, Subject: Recall to Active Duty, date and time group, 251338ZNOV96; Orders 353-0007, Headquarters, United States Military Academy, dated 18 December 1996; Memorandum, Subject: Promotion as a Reserve Commissioned Officer of the Army in Active Guard/Reserve Status dated 24 September 1998; and 2 pages of a form entitled, Major Personnel Action Inquiry.

5. The applicant’s military records show that he enlisted in the US Army Reserve on 17 February 1981 in the rank and pay grade, Private (E-1), to participate in the Reserve Officer Training Corps - Simultaneous Membership Program.

6. The applicant was commissioned a Second Lieutenant in the Transportation Corps and on 9 December 1985, he was ordered to active duty for a period of three years. He reported for active duty on 18 January 1986.

7. He remained on active duty beyond his initial active duty service obligation of

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3 years and on 3 March 1989 orders were published promoting him to the Grade of Rank of Captain with an effective date and date of rank of 1 April 1989.

8. The applicant was non-selected for promotion to the grade of rank of Major by the 1995 and 1996 Active Component Major Promotion Selection Boards. The applicant was notified by memorandum from the US Total Army Personnel Command that he would be involuntarily released from active duty on 1 January 1997. He was strongly encouraged to continue affiliation with the Army by joining a unit in the Army National Guard or Army Reserve.

9. Orders for his release from active duty were published on 13 August 1996 by the US Military Academy (USMA) with a REFRAD date to be effective 1 January 1997.

10. He requested that he be allowed to remain on active duty beyond his MRD of 1 January 1997. His request was approved based on the needs of USMA's English Department and the strong support given by his chain of command. He was allowed to remain on active duty until 30 June 1997.

11. Orders published by the USMA on 13 August 1996 were revoked and on
18 December 1996, new orders were prepared for his REFRAD to be effected on 30 June 1997.

12. He was honorably released from active duty on 30 June 1997 in the grade of rank of Captain under the provision of Army Regulation 600-8-24, paragraph 2-41, with the narrative reason: "Non-Selection-Permanent Promotion." On his REFRAD date, he had 11 years, 7 months and 5 days active Federal service and 3 years 28 days inactive service. He had 8 years, 3 months time in grade as a captain.

13. The 1997 Reserve Component Majors Promotion Selection Board convened 11 Mar, adjourned 11 April and was approved by the President on 27 August 1997. The applicant was on active duty and a member of the active duty list.

14. He was considered and selected for promotion to major by the 1998 Reserve Component Majors Selection Board. The 1998 Reserve Component Majors Promotion Selection Board convened on 24 March, adjourned on 24 April and the President approved the results of this board on 31 August 1998.

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15. The promotion memorandum that he submitted in support of his application indicates an effective date of promotion to major of 31 August 1998. The memorandum further states that, "Time in grade will be computed from the date of rank, shown after B above. [the word, "None" appears after B in the memorandum]. The memorandum further states, "If there is no date shown after B, the date of rank will be established from the effective date of this promotion." He was promoted to major with a date of rank and promotion effective date of
31 August 1998, the date that appears after the letter A on his promotion memorandum. The date after the letter A is the effective date of promotion to major.

16. 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.

17. Title 10, section 14304(a)(1) states, in pertinent part, that officers shall be considered for promotion far enough in advance of completing the years of service in grade specified so that if an officer is recommended for promotion, the promotion may be effective on or before the date which the officer will complete those years of service. The maximum time in grade (MTIG) in service for a captain is 7 years.

18. Title 10, section 14304(b) specifies that an officer who is recommended for promotion to the next higher grade by a selection board while in or above the promotion zone will be promoted on the date on which the officer completes his MTIG in service in the grade specified.

19. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and of commissioned officers of the U.S. Army Reserve (USAR).

20. 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.”

21. In the processing of this case, an advisory opinion was requested of the US Total Army Personnel Command. The Chief, Special Action Branch in the Office

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of Promotions, Reserve Components, opined that the applicant was not in a reserve status when the 1997 Reserve Component Majors Promotion Selection Board was convened; therefore, the applicant was not eligible for promotion consideration by that board. The Chief, Special Actions Branch, also opined that the applicant was eligible for a date of rank adjustment to 1 July 1997 and recommended that the applicant's promotion orders be corrected to reflect a corrected date of rank of 1 July 1997 and an effective date of 31 August 1998, the date the board was approved by the President. The applicant was provided a copy of the opinion for acknowledgement and/or rebuttal on 28 August 2002. The applicant did not provide an acknowledgement or a rebuttal.

CONCLUSIONS:

1. On the date that the 1997 Reserve Component Majors Promotion Selection Board was convened, the applicant was still on active duty as a member of the active component. He was extended on active duty from 2 January 1997 until
30 June 1997, beyond the originally imposed MRD of 1 January 1997. He was not released from active duty until 30 June 1997.

2. When the applicant was considered and selected for promotion to the grade of rank of major, he had already exceeded the normal MTIG as a captain.

3. The applicant was considered for promotion to the grade of rank of major by the first scheduled Reserve Component Majors Promotion Selection Board, the 1998 board, which convened after he was released from active duty. He was not eligible for consideration for promotion in the reserve before his release from active duty.

4. The promotion selection board results were not approved by the President until 31 August 1998; however, he is eligible for a date of rank adjustment to
1 July 1997, the first date he was eligible to compete for promotion as a member of the Reserve.

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

RECOMMENDATION:

1. That all Department of the Army records related to this case be corrected by amending the applicant's date of rank from 31 August 1998 to 1 July 1997. The effective date of promotion to Major will remain 31 August 1998, the date the President approved the promotion board results.

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

BOARD VOTE:

__jhl___ __mvt___ __rtd___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Joann Langston
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074340
SUFFIX
RECON
DATE BOARDED	20021017
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.0000
2.	131.0500
3.
4.
5.
6.