PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2002079688


         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:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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.

---

2. The applicant requests, in effect, adjustment to his date of rank for promotion to major and earlier promotion consideration to lieutenant colonel.

3. The applicant states that due to his date of rank for captain, he should have been considered for major 1-year earlier. Due to Title 10 and the promotion board he was recommended under, his date of rank for major has been adjusted to April 1997 instead of 30 September 1996. He also states that had he been considered the previous year, 30 September 1996 would be the correct date of rank. In support of his application he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

4. The applicant’s military records show that he entered on active duty effective 22 May 1985. He was promoted to captain effective 1 October 1989. He was released from active duty effective 1 August 1994 and transferred to a Reserve Troop Program Unit (TPU).

5. Based on the required 7 years time in grade (TIG) and the required 12 years time in service (TIS) his maximum time in grade (MTIG) date for promotion to major was 30 September 1996 and 21 May 1997, respectively. He was eligible for promotion on the latter date.

6. He was considered and selected for promotion to major by the 1997 Reserve Components Selection Board (RCSB). The President approved the board results on 27 August 1997.

7. The Chief, Promotion and Notifications Branch, Office of Promotions, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant’s promotion eligibility date (PED) for major was 21 May 1997. Based on his PED he was not in the zone for consideration by the 1996 RCSB. The 1997 RCSB was the first major’s board that was affected by the Reserve Officer Personnel Management Act (ROPMA), which used the TIG criteria only. Since the 1997 board used the TIG criteria, the applicant’s PED was established as 30 September 1996. He was selected for promotion by the 1997 board and the board was approved for release on 27 August 1997. The applicant was in a TPU and was promoted by the Army Reserve Command on orders dated 2 October 1997, with 30 September 1996 as his date of rank and 2 October 1997 as his effective date. On 16 August 2002, the order was revoked and the applicant was issued an order with 27 August 1997 as his date of rank and promotion effective date. His promotion was in accordance with Army Regulation 135-155, paragraph 4-21. The regulation states, if an officer meets the MTIG date before the approval date of the board, his promotion date and effective date will be no




earlier than the date of approval of the board by which he was recommended for promotion. Based on the applicant’s date of rank of 27 August 1997, his PED for lieutenant colonel is 26 August 2004; therefore, he was not in the zone for consideration by the 2002 lieutenant colonel selection board and does not have a basis for special board consideration under 1996 nor 2002 criteria.

8. The opinion was forwarded to the applicant for rebuttal on 13 January 2002. He did not respond.

9. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation, prior to 1 October 1996, specified that in order to be qualified for promotion to major an individual must have completed 7 years of MTIG as a captain and 12 years of commissioned service.

10. 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 the management of Reserve Component officers. The law was implemented on 1 October 1996. ROPMA provides that in order to be eligible for promotion to major the MTIG 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. Promotion cannot be effective prior to approval of the respective boards by the President.

11. Title 10, United States Code, section 14304 specifies that officer shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the 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 the required years of service.

12. 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.”

CONCLUSIONS:

1. Notwithstanding the opinion from the PERSCOM, the applicant is entitled to adjustment of his date of rank for major to 30 September 1996, his MTIG date and in accordance with the ROPMA.

2. In cases such as this, the Board has adjusted the date of rank of officers considered for promotion to major for the first time for a Reserve promotion based on their MTIG dates and prior to the approval of the respective board by

the President. The effective date of promotion shall remain as 27 August 1997, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the antedated date of rank.

3. The Board also notes that based on this correction to his date of rank for major to 30 September 1996, his MTIG date for promotion to lieutenant colonel is 29 September 2003; therefore, he is entitled to promotion consideration to lieutenant colonel under 2003 criteria.

4. 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 effective 30 September 1996, with a date of rank of 27 August 1997, with no further entitlement to additional pay or allowances based on this adjustment.

2. That all of the Department of the Army records related to this case be corrected by submitting the records of the individual concerned to a duly constituted promotion selection board as deemed appropriate for promotion consideration for lieutenant colonel under 2003 criteria.

3. If the applicant is selected, his records should be further corrected by showing he was promoted to the next higher grade on his date of eligibility as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion. If the applicant is not selected, he should be so notified.

BOARD VOTE:

_JIP_____ _ECP___ _RVO__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Raymond V. O'Connor, Jr.__
                  CHAIRPERSON

---

INDEX

CASE ID	AR20020796788
SUFFIX
RECON
DATE BOARDED	20030612
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.05
3.
4.
5.
6.