PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 17 April 2003
         DOCKET NUMBER: AR2003085255


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Harry B. Oberg		Member
Mr. Ronald J. Weaver		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 reconsideration of her request to change her major (MAJ) date of rank (DOR) from 3 January 2000 to 22 July 1999, and that she be provided all pay and allowances due her as a result.

3. The applicant states that during the Boards’ original consideration of her case, her DOR to CPT was erroneously reported as 6 June 1995, as opposed to 22 July 1992, which is the actual date she was promoted to CPT. In support of her application, she provides a copy of her CPT promotion memorandum.

4. The Memorandum of Consideration (MOC) of the Board’s 15 June 2000 review of the case (AR2000040221) is incorporated herein by reference as if wholly set forth.

5. On 24 July 1985, the applicant was appointed a 2^nd lieutenant in the United States Army Reserve (USAR). On 6 June 1997, she entered onto her current period of active duty in an Active Guard/Reserve (AGR) status, and she is currently still serving in that status.

6. During the Board’s original consideration of the case, the applicant’s CPT DOR was reported as 6 June 1995. However, the applicant has provided a copy of a United States Army Special Operations Command, Fort Bragg, North Carolina, memorandum, dated 28 July 1992, subject: Promotion as a Reserve Commissioned Officer of the Army, that authorized her promotion to CPT with a DOR of 22 July 1992. This promotion date to CPT is also confirmed and verified by orders and documents now on file in her Official Military Personnel File (OMPF).

7. On 2 March 1999, the MAJ, Reserve Component (RC), Promotion Selection Board convened to consider all eligible RC captains (CPT) for selection for promotion to MAJ. The Board adjourned on 2 April 1999, and the promotion list, which included the applicant’s name, was approved by the President on
3 January 2000. The promotion list was published on 14 January 2000, and the applicant was promoted to MAJ with an effective date and DOR of 3 January 2000, which was the date the President approved the list.

8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).

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9. Chapter 2, section III (Board Consideration), states that boards will convene each year and will consider officers on the Reserve Active Status List (RASL) for promotion to captain through lieutenant colonel without regard to vacancies in the next higher grade. It also states, in pertinent part, that the first consideration for promotion will occur well in advance of the date the officer will complete the time in grade (TIG) requirements in table 2-1 or table 2-3, as appropriate. Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the maximum years required in the lower grade (MYIG) requirement for promotion to MAJ is 7 years.

10. Chapter 4, section III (Dates of Promotion) does state that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued, and the promotion memorandum will not be issued prior to promotion board results being approved and/or confirmed by the Senate if required). Further, Title 10 of the United States Code, section 12203 (10 USC 12203) establishes, in effect, that RC officers on a promotion list will be promoted when the report of the selection board is approved by the President. Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President. It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

11. 10 USC 14304 provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law. Paragraph (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 MYIG 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. This provision of the law establishes the MYIG for CPT going to MAJ as 7 years.

12. Paragraph (b) of 10 USC 14304 states, in effect, that an RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list shall be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law.

CONCLUSIONS:

1. The evidence of record confirms that the original Board determination was based on an incorrect CPT DOR, and that the applicant was actually promoted to CPT on 22 July 1992, which would have established her MYIG promotion date to MAJ as 21 July 1999.

2. By law and regulation, the first promotion board consideration of RC officers will be done far enough in advance to allow selected officers to be promoted on or before they reach their MYIG. The MYIG for promotion to MAJ is established as 7 years. Therefore, the Board concludes that since the applicant attained her MYIG as a CPT on 21 July 1999, her MAJ DOR should be established as this date.

3. Although the Board finds a legal basis to support adjusting the applicant’s DOR, and it concludes that this action would be appropriate in order to allow the applicant to remain competitive for promotion to higher grades, it does not find a legal or regulatory basis to provide her back pay and allowances.

4. By law, promotion effective dates cannot be established prior to the date the promotion list is approved by the President. Therefore, the Board concludes there should be no change to the applicant’s promotion effective date and that she is not entitled to any back pay and allowances as a result of the Board’s recommended change to her DOR.

5. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the date of rank to major of the individual concerned is 21 July 1999.

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

BOARD VOTE:

__hbo___ __rjw ___ __wtm __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Walter T. Morrison____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003085255
SUFFIX
RECON	AR2000040221
DATE BOARDED	2003/04/17
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	N/A
REVIEW AUTHORITY	N/A
ISSUES 1. 21	102.0700
2.
3.
4.
5.
6.