PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 September 2003
         DOCKET NUMBER: AR2003087556


         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
Ms. Barbara J. Ellis		Member
Mr. Frank C. Jones, II		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 correction to his date of rank for major from 8 December 2002 to 11 April 2002.

3. The applicant states that his officer records were erroneously removed from consideration by a selection board and following identification of the error, he was considered and selected for promotion to major by the next selection board. He also states that he was serving in a major’s position, had met all promotion qualifications, and would have been selected as evidenced by the second board had the administrative error not occurred. In accordance with Army Regulation 135-155, had his records been reviewed properly and the administrative error not occurred, his date of rank would be 11 April 2002. In support of his request he submits copies of his promotion order for major, his officer evaluation report verifying assignment to a major’s position and statements from his commander and the Forces Command Deputy Assistant Chief of Staff.

4. The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 30 May 1992.

5. He was promoted to first lieutenant effective 30 May 1994 and to captain effective 1 June 1996.

6. Army Reserve Personnel Command (ARPC) Form 155-R (Promotion Qualification Statement) dated 8 August 2001, shows the applicant was assigned to a major’s position effective 9 March 2001 and met all qualifications for promotion to major.

7. He was identified and later removed from the list for promotion consideration to major by the January 2002 Position Vacancy Board (PVB). The President approved the board results for majors on 11 April 2002.

8. He was considered and selected for promotion to major by the June 2002 PVB. The President approved the board results on 3 October 2002.

9. He was issued a promotion memorandum, dated 13 February 2003, indicating a promotion effective date and date of rank for major of 8 December 2002.

10. In a memorandum dated 28 February 2003, the applicant’s commander stated that the applicant’s unit properly submitted a completed promotion packet for him in August 2001. Following confirmation of receipt, his package was erroneously removed from consideration by the January 2002 PVB. Neither the officer nor his chain of command were informed of the applicant’s removal until two months after the completion of the board. As a result, the applicant’s promotion package was submitted for consideration by the June 2002 PVB


and he was selected for promotion to major. The commander also stated that the applicant met all the requirements for promotion effective 8 December 2002 and the administrative error was not due to negligence on the part of the applicant.

11. In a memorandum dated 26 February 2003, the Deputy Assistant Chief of Staff, Headquarters, Forces Command, stated that the applicant’s date of rank for major should be corrected to 11 April 2002. His file was originally scheduled for review by the January 2002 PVB and his packet was erroneously removed. When his chain of command was made aware of this removal, they submitted the applicant’s file for consideration on the June 2002 PVB. The applicant was selected and assigned a date of rank of 8 December 2002. The applicant properly prepared his file and his unit properly followed the procedures for the submission. The improper removal of the applicant’s file should not result in an adverse impact on the applicant.

12. A staff member of the Military Personnel Actions Branch, AR-PERSCOM, St. Louis, Missouri, expressed the opinion that effective 1 October 1996, the Reserve Officers Personnel Management Act (ROPMA) became effective. The ROPMA specifies that the effective date of promotion and date of rank will be the date the officer is assigned to a higher graded position providing he/she meets all other qualifications for promotion. The act further specifies that the effective date of promotion may not predate the approval, by the President, of the board results. The applicant was selected by the June 2002 PVB with an approval date of 3 October 2002 and release date of 19 November 2002. The applicant, however, did not meet all qualifications until 8 December 2002 when he was assigned to a higher graded position. In view of the facts, it was determined that the applicant’s date of rank was correct.

13. The opinion was forwarded to the applicant for acknowledgement/rebuttal on 5 May 2003. In his rebuttal dated 21 May 2003, he states that the issue under appeal is his date of rank correction. His records were erroneously removed from consideration by the January 2002 PVB, he met all qualifications at the time of the January PVB and he would have been selected by that board as evidenced by his June board selection had his records not been erroneously removed. The advisory opinion statement that he did not meet all qualifications for the promotion until he was assigned to a higher graded position on 8 December 2002 is incorrect. He was assigned to a major’s position at the time of both the January and June PVB’s. He submits copies of his DA Form 2B (Reserve Qualification Record), his ARPC Form 155-R, his officer evaluation report for the periods ending 9 March 2002 and 9 March 2003 for the Board’s review.


14. The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribed policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers. ROPMA was implemented on 1 October 1996, and it established that the effective date of promotion and date of rank will be the date the officer is assigned to a higher graded position providing he/she meets all other qualifications for promotion. The act further specifies that the effective date of promotion may not predate the approval, by the President, of the board results.

15. Army Regulation 135-155, prescribed the policies and procedures for promotion of Reserve officers. The regulation specifies that officers in the grade of captain may be eligible for promotion consideration to major by a PVB upon completion of 4 years maximum time in grade. Unit officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available to serve in the position for which considered.

16. This regulation further specifies that officers selected for promotion by a PVB will have a promotion effective date and date of rank no earlier than the approval date of the board, or the date the officer is assigned to the position.

CONCLUSIONS:

1. The applicant is entitled to adjustment to his date of rank for major to 11 April 2002, the approval date of the January 2002 PVB, based on his consideration and selection for promotion to major by the June 2002 PVB and assignment to a major’s position effective 9 March 2001.

2. The Board concludes that removal of the applicant’s records from the January 2002 PVB was improper and unjust. The evidence of record shows that the applicant and his command were notified of this removal after the January 2002 PVB had adjourned and his command took corrective action and submitted the application’s records for consideration by the June 2002 for which he was selected for promotion to major.

3. In addition to the foregoing, the Board also concludes that the applicant was prevented from equitable promotion consideration by the January 2002 PVB; therefore had he been timely considered for promotion by the first PVB, and based on his selection by the June 2002 PVB, a reasonable chance would have resulted that he would have been selected and respectively promoted with a date rank of 11 April 2002, the approval date of the January 2002 PVB.



4. The Board further concludes that since the applicant was selected and respectively promoted on the June 2002 PVB and occupying a major’s position prior to that date, he is entitled to an earlier promotion effective date of 3 October 2002, the approval date of the June 2002 PVB, with entitlement to additional pay and allowances.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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 3 October 2002, with a date of rank of 11 April 2002, with entitlement to additional pay or allowances based on this adjustment to his promotion effective date.

BOARD VOTE:

_FCJ___ _BJE___ _RVO____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O'Connor, Jr._
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087556
SUFFIX
RECON
DATE BOARDED	20030904
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.01
3.
4.
5.
6.