PROCEEDINGS


         IN THE CASE OF:
                                   
        

         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2002077527


         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Linda M. Barker		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 his date of rank (DOR) for promotion to major be corrected to 14 August 1998.

3. The applicant states that he was considered and selected for promotion to major by the 1998 Reserve Components Major Army Promotion List board effective 31 August 1998. He states that he meets the requirements to be promoted on 14 August 1998 based on his DOR for captain and his promotion eligibility date (PED) for major. He notes that he had been serving in a major’s position since 2 September 1997.

4. The applicant’s military record shows that he accepted his Reserve second lieutenant’s commission on 13 June 1986. He was promoted to first lieutenant on 27 May 1989, and to captain on 15 August 1991.

5. A 24 September 1998 memorandum from the US Total Army Personnel Command, St. Louis, Missouri, notified the applicant that he had been selected for and promoted to major effective 31 August 1998.

6. The applicant provided an extract of Army Regulation 135-155, (Promotion of Commissioned Officers and Warrant Officers other than General Officers), effective 1 September 1994. Paragraph 4-15 (Promotion eligibility date and date of rank) is highlighted. This paragraph states that the promotion eligibility date is the date that an officer meets the eligibility criteria for promotion to the next higher grade. Further, date of rank is defined as the date the member actually or constructively was appointed to a specific grade and it is the date used to determine the relative seniority for officers holding the same grade. This paragraph concludes with the statement that the officer’s promotion eligibility date will become the officer’s date of rank upon promotion and the date of rank will be used to establish the promotion eligibility date to the next higher grade.

7. In the processing of this case, an advisory opinion was provided by the Chief of Special Actions, Office of Reserve Components Promotions. The Chief indicated that the applicant had been in a higher grade position on his PED therefore, recommended that his DOR be corrected to 14 August 1998.

8. Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and the commissioned and warrant officers of the U.S. Army Reserve. Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the maximum years of service required in the lower grade for promotion to major is seven years and to lieutenant colonel is seven years.

9. Title 10, United States Code, Section 14308 (c) (2) states: “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.”

10. Section III (Dates of Promotion) of Army Regulation 135-155 provides the procedures for computing promotion effective dates of all reserve component officers. It states, in pertinent part, that, unless otherwise entitled by law, antedating of either the effective date of promotion or the promotion eligibility date will not entitle a reserve component officer to increased pay and allowances. However, it does establish that the promotion eligibility date and date of rank is the date the officer meets the eligibility criteria for promotion to the next higher grade. Further, it states that an officer’s promotion eligibility date will become his date of rank upon promotion and this date will be used to establish the relative seniority for officer’s holding the same rank. Finally, it states that date of rank will be used to establish the officer’s promotion eligibility date to the next higher grade.

11. Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law. Subsection (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 maximum years of service in grade 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. The table in subsection (a) establishes the maximum years of service in grade for a captain to be promoted to major as seven years and for a major to be promoted to lieutenant colonel as seven years.

12. Subsection (b) of Title 10 United States Code, Section 14304 states: “An officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title 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 which the officer completes maximum years of service in grade specified in subsection (a).

13. Title 10, United States Code, Section 12203 (a) states: “Appointments of reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officer, shall be made by the President alone.” Subsequently, in a 22 April 1997 legal opinion on effective dates of promotion for reserve officers under the Reserve Officers Personnel Management Act, the Chief of the Military Personnel Law Branch, Office of the Judge Advocate General, opined that the effective date of promotion of reserve component officers may not predate the approval of the promotion board results by the President.

CONCLUSIONS:

1. The applicant’s promotion eligibility date to major was 14 August 1998 based on seven years from the date he was promoted to captain.

2. The applicant was selected for advancement to major by the 1998 Reserve Component, Major, Army Promotion List, Promotion Selection Board; with the President approving the board results on 31 August 1998.

3. The applicant’s promotion was announced on 24 September 1998 with promotion, pay and allowances, and time in grade for promotion to the next grade effective 31 August 1998, the same date the President approved the promotion selection board results.

4. The Board finds that the law provides that a reserve component officer who is selected for promotion to major, if not promoted sooner, will be promoted not later than the date he or she reaches the maximum years of service in grade, seven years as a captain. Therefore, the Board concurs with the advisory opinion that the applicant is entitled to adjustment of his date of rank to major. Further, the Board has determined, based on law and regulation currently in effect, that the applicant’s date of rank is 14 August 1998 and that this same date is also the starting date for determining the applicant’s promotion eligibility date to lieutenant colonel.

5. Based on adjustment of the applicant’s date of rank to 14 August 1998, the Board has determined, based on law and regulation currently in effect, that the applicant’s promotion eligibility date to lieutenant colonel is 13 August 2005.

6. However, the Board finds that the actual date of the applicant’s promotion may not precede 31 August 1998, which is the date on which the President approved the 1998 Reserve Component, Major, Army Promotion List, Promotion Selection Board results. Further, law and regulation provide that antedating of either the effective date of promotion or the promotion eligibility date will not entitle a reserve component officer to increased pay and allowances. Therefore, the applicant’s actual promotion date cannot be adjusted to any date prior to 31 August 1998 and he cannot be paid any back pay and allowances.

7. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.



RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing the date of rank of the individual concerned is 14 August 1998 and that his promotion eligibility date to lieutenant colonel is 13 August 2005.

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

BOARD VOTE:

_RJW___ __BJE___ __LMB__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Raymond J. Wagner___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077527
SUFFIX
RECON
DATE BOARDED	20030408
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	102.02
2.
3.
4.
5.
6.