| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Mr. Raymond J. Wagner | Chairperson | ||
| Mr. Robert L. Duecaster | Member | ||
| Ms. Marla J. Troup | Member |
2. The applicant requests, in effect, that his promotion date to major (MAJ) be changed to 18 December 1999.
3. The applicant states, in effect, that the release date of the Reserve Component Selection Board (RCSB) list was after he had reached his Promotion Eligibility Date (PED) based on the seven years maximum years in grade (MYIG) requirements of the governing law and regulation.
4. The applicant’s military records show that he is currently serving on active duty in an Active Guard Reserve (AGR) position. It also confirms that he was promoted to the rank of captain (CPT) on 19 December 1992, which established his PED for MAJ as 18 December 1999, based on his having attained the 7 years MYIG requirement established by law.
5. A promotion memorandum pertaining to the applicant, dated 14 January 2000, published by the Total Army Personnel Command (PERSCOM), St. Louis, promoted him to the rank of MAJ, effective 3 January 2000, which was also the date established as his date of rank (DOR) to MAJ.
6. An electronic mail (e-mail) message from the Chief, Special Actions, RC Promotions Branch, PERSCOM, St. Louis, to the applicant, dated 21 April 2003, advised the applicant that the earliest DOR that could be established by their office in connection with his promotion to MAJ was 3 January 2000, the date the President approved the list. This promotion official also advised the applicant that under an Office of The Judge Advocate General (OTJAG) legal opinion, officers whose promotions were delayed beyond their PED may apply to this Board for relief.
7. 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). 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 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 MYIG requirement for promotion to MAJ is 7 years.
8. Chapter 4, section III (Dates of Promotion), of the USAR promotion regulation 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). In addition, 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 him to additional pay or allowances.
9. 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. Paragraph (b) states, in effect, that a 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 Board notes that by law, an RC officer may not be promoted prior to the date the President approves the list. However, it does not find this is the determinate operative law pertaining to DOR adjustments, as in this case.
2. In the opinion of the Board, although the effective date of a USAR officer’s promotion cannot be prior to the approval date of the Board, this does not preclude a change to the applicant’s DOR in the interest of equity, based on MYIG provisions of the law, in order to allow him to remain competitive with his peers.
3. By law and regulation, officers will be placed in a promotion zone and shall be considered for promotion to the next higher grade by a promotion board 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.
4. The Board finds a legal basis to support adjusting the applicant’s DOR and PED to the next higher grade, and it concludes that taking this action at this time would be appropriate. However, the law mandates that his promotion effective date can not be prior to the date the promotion list was approved by the President. Therefore, the Board concludes there should be no change to the applicant’s promotion effective date, and that he is not entitled to any back pay and allowances as a result of the Board’s recommended change to his DOR.
5. 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 that the DOR to MAJ of the individual concerned is
18 December 1999.
2. That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:
__RJW__ __MT__ __RLD __ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Raymond J. Wagner
CHAIRPERSON
| CASE ID | AR2003090373 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2003/08DD |
| TYPE OF DISCHARGE | N/A |
| DATE OF DISCHARGE | N/A |
| DISCHARGE AUTHORITY | N/A |
| DISCHARGE REASON | N/A |
| BOARD DECISION | GRANT PARTIAL |
| REVIEW AUTHORITY | |
| ISSUES 1. 21 | 102.0700 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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