MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 June 2003
         DOCKET NUMBER: AR2002081328

         I certify that hereinafter is recorded the record of consideration 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. Walter T. Morrison		Chairperson
Mr. Lester Echols		Member
Mr. Lawrence Foster		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Correction to his date of rank for major from 19 June 2002 to 17 June 2001, the date his was assigned to a major’s position.

APPLICANT STATES: That his date of rank for captain was 1 August 1993 and he was not selected for major while on active duty during the fiscal year (FY) 2000 and 2001 selection boards. Following the FY 2001 major promotion board he was selected for the Active Guard/Reserve (AGR) program. He also states that either the active duty or Reserve major promotions board in FY 2001 did not consider him. In support of his application he submits copies of his captain and major promotion orders, his AGR assignment orders, his active duty release from active duty orders and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

EVIDENCE OF RECORD: The applicant's military records show:

He was appointed in the Reserve as a second lieutenant effective 14 May 1988.

He was ordered to active duty effective 12 September 1989 and promoted to captain effective 1 August 1993.

He was considered and not selected for promotion to major by the 1999 and 2000 active duty promotion boards.

On 12 September 2000, he was notified of his second non-selection for promotion to major. He was also advised that officers twice non-selected for promotion will be discharged/released from active duty not later than the first day of the 7^th month from the approval month of the board. Since the board was approved in August 2000, the first day of the 7^th month would be 1 March 2001.

He was not identified to the FY 2001 major promotion board due to his scheduled release from active duty. He was separated from active duty effective 16 June 2001 by reason of twice non-selection for promotion and transferred to the Army Reserve.

He entered into the AGR program effective 17 June 2001 and placed on the Reserve Active Status List (RASL).

The Officer Personnel Management Division, Army Reserve Personnel Command verified that he was assigned to an AGR major position effective 17 June 2001.




He was considered and selected for promotion to major by the 2002 Reserve Components Selection Board (RCSB). This was the first RASL promotion board he was eligible for past the date he was assigned to a major’s position. It convened from 4 March to 3 April 2002. The President approved the results of the board on 19 June 2002. He was not eligible for consideration by an earlier promotion board since he was on active duty until 16 June 2001. The 2001 RCSB convened from 6 March to 5 April 2001.

The Chief, Promotion and Notifications Branch, Office of Reserve Promotions, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant was promoted to captain on 1 August 1993. Promotion to major requires 7 years time in grade; therefore, his promotion eligibility date to major was 31 July 2000. The applicant was released from active duty on 16 June 2001; therefore, he was not eligible for an earlier board. He was considered and selected for promotion to major by the 2002 RCSB. Under the Reserve Officer Personnel Management Act (ROPMA), an officer cannot be promoted until the President has approved the board. The President approved the board on 19 June 2002 and the results were released on 16 July 2002. He was issued a promotion memorandum on 16 July 2002, with a date of rank 19 June 2002, since this was the day the President approved the board. Based on this information, it was recommended that the applicant's request be denied.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 20 February 2003. In his rebuttal, dated 15 March 2003, he states that his request for the change in his date of rank to 17 June 2001, is based on the fact that he was not given the opportunity to be reviewed by a promotion board in calendar year 2001. He was advised that he was eligible for a date of rank change and that the ROPMA has a provision for officers in this situation. He was selected for promotion by a promotion board in 2002, and he met the requirements for promotion and nothing had changed since the previous year.

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 maximum time in grade 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. ROPMA further specifies that the AGR officers must be serving in the Ready Reserve by




the board convening date and serving in a position requiring the higher grade. Promotion cannot be effective prior to approval of respective boards by the President.

This regulation also specifies that for an officer selected by a mandatory promotion board that has a MTIG date before the approval date of the board, the promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended. In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers on the RASL. This regulation specifies that an officer will not be considered for a Reserve promotion unless in a Ready Reserve status not later than the date a respective RCSB convenes to be considered by that RCSB for a Reserve promotion.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant is not entitled to adjustment of his date of rank for major to 17 June 2001, the date he was assigned to a major’s position. The fact that he was in a major's position at the time is immaterial. He was not promotable at that time. He has not shown error or injustice for the relief he is requesting.

2. The Board notes his contentions that he should have an earlier date of rank because an active duty or Reserve major promotion board did not consider him in 2001. However, based on his two non-selections by the 1999 and 2000 active duty promotion boards and required release from active duty, he was not eligible for promotion consideration by the 2001 active duty promotion board.

3. The Board also notes that the applicant was separated from active duty on 16 June 2001, which was after the 5 April 2001 recess date of the 2001 RCSB. He was properly considered for Reserve promotion by the 2002 RCSB, the first board held after his separation from active duty and transfer to the Reserve. His date of rank and promotion effective date are proper and he has not shown otherwise.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.



5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_LF_____ _WTM___ __LE____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002081328
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.01
3.
4.
5.
6.