| Mr. Carl W. S. Chun | Director | |
| Mrs. Carolyn Wade | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Ms. Karen A. Heinz | Member |
2. The applicant requests that his date of rank to major be adjusted from 3 January 2000 to his promotion eligibility date (PED) of 21 May 1999.
3. The applicant states that, in accordance with the Reserve Officer Personnel Management Act (ROPMA), the time in grade from captain (CPT) to major (MAJ) is 7 years, and he was promoted after the 7th year. He states that his current date of rank is 3 January 2000; however, since he was promoted to CPT on 21 May 1995 [sic], the record needs to be adjusted. In support of his application, the applicant submitted a copy of his DA Form 4037 (Officer Record Brief).
4. The applicant’s military records show that he is a major serving on active duty in the United States Army Reserve. On 21 May 1992, the applicant was promoted to CPT. On 15 December 1999, he was assigned to a position graded as a major’s billet.
5. In the processing of this case, a staff advisory opinion was obtained from the U.S. Total Army Personnel Command, Office of Promotions, Reserve Components. The Office of Promotions, Reserve Components, stated that the applicant was selected for promotion to major by the 1999 DA Reserve Components Selection Board with a promotion eligibility date of 20 May 1999, and was subsequently promoted on orders dated 14 January 2000 with a date of rank of 3 January 2000, the date the promotion board was approved by the President. The Office of Promotions, Reserve Components, stated that the applicant was assigned to a position graded as a major’s billet on 15 December 1999; therefore, it was recommended that his date of rank be changed to 15 December 1999. The applicant was provided a copy of the advisory opinion for possible rebuttal; however, to date he has not provided one.
6. Title 10, U. S. Code, Section 12203 provides that appointments of Reserve officers in commissioned grades above the grade of lieutenant colonel shall be made by the President, by and with the advice and consent of the Senate. Appointments of Reserve officers in commissioned grades of lieutenant colonel and below shall be made by the President alone.
7. Title 10, U.S. Code, Section 14304 states that officers shall be placed in the promotion zone for that officer’s grade and competitive category and 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 specified 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 maximum years of service for promotion to the grade of major is 7 years.
8. Title 10, U.S. 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.
9. In similar cases, the Office of The Judge Advocate General has previously opined that USAR officers who are serving in positions requiring the grade to which they will be promoted will have an effective date and date of rank in the higher grade as the date of issuance of the promotion memorandum. Additionally, the issuance of the promotion memorandum may not precede the approval by the President of the promotion board results. The previous authority of Title 10, U.S. Code, Section 3363(d) to antedate the effective dates of Reserve officer promotions was repealed without replacement by ROPMA.
CONCLUSIONS:
1. Although the applicant indicates in item 9 of his Application for Correction of Military Record (DD Form 149), that he was promoted to CPT on 21 May 1995, the evidence of record shows he was promoted to CPT on 21 May 1992.
2. The provisions of law state that an officer cannot be promoted earlier than the date the President approved the results of the selection board. In the applicant’s case, this is 3 January 2000.
3. However, the provisions of law also state that an officer will be considered for promotion well in advance, so that, if recommended, he could be promoted on or before the date on which he completes the maximum years of service, which in the applicant’s case was 7 years. The applicant completed 7 years as a captain on 20 May 1999. However, the applicant was not in a higher grade position on his PED, and was not assigned to a higher grade position until 15 December 1999. Therefore, the applicant is not eligible to have his PED adjusted to 20 May 1999.
4. Notwithstanding the provisions of law that limit the effective date of promotion based on the date the President signs the promotion list, fairness requires that the officer’s records be corrected to show his date of rank to be the date he was assigned to a position graded as a major’s billet, i.e., 15 December 1999. The Board concludes that there is no unfairness in not adjusting the effective date of his promotion, as all other officers selected for promotion by that board will also have the same effective date.
5. In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to major as a Reserve commissioned officer of the Army in an Active Guard/Reserve status effective 3 January 2000 with a date of rank of 15 December 1999.
2. That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:
__fne___ __mhm___ __kah___ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Fred N. Eichorn
______________________
CHAIRPERSON
| CASE ID | AR2002083218 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030816 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. | 129.0500 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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