RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 October 2005
      DOCKET NUMBER:   AR20040004679


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M Douglas             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her promotion eligibility date
and effective date of rank (DOR) to lieutenant colonel (LTC/O-5) be
adjusted based on 7 years maximum service in the grade of major (MAJ/O-4).

2.  The applicant states, in effect:

      a.  She was a MAJ, JA (Judge Advocate) in the US Army Reserve (USAR)
serving in a troop program unit (TPU).  She was promoted to MAJ on 23 May
1996.

      b.  She was recommended for promotion to LTC by the 2002 promotion
board and was notified on 4 February 2003.

      c.  She was mobilized for 1 year on 24 February 2003.  Had she
remained in her USAR unit, she would have been promoted to LTC on 23 May
2003, the
7-year anniversary of her promotion to MAJ.

      d.  Had she not been a JA officer, she would have been promoted on 23
May 2003 while in a mobilization status.

3.  The applicant also states that five other JA officers who were serving
with her in her USAR Regional Readiness Command were promoted because they
were not mobilized.  Now, she is disadvantaged for future promotions and
positions of opportunity when competing with her peers.

4.  The applicant further states that she requested The Judge Advocate
General of the Army (TJAG) authorize her promotion to LTC effective 23 May
2003.  She received no response to her request.

5.  The applicant provides in support of her request:

      a.  Memorandum, Headquarters, 94th Regional Support Command (RSC),
dated 4 February 2003, Subject:  2002 Promotion List for Lieutenant
Colonel.

      b.  Memorandum, Headquarters, US Army Reserve Command, dated
21 January 1997, promoting the applicant to MAJ effective 23 May 1996.

      c.  Memorandum, US Army Human Resources Command – St. Louis, dated 2
March 2004, promoting the applicant to LTC effective 21 February 2004.

      d.  Orders M-050-0004, Headquarters, 94th RSC, dated 19 February
2003, involuntarily mobilizing the applicant for 1 year effective 24
February 2003.

      e.  Copy of 10 U.S.C. §14304.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a LTC, USAR, JA.  She was considered and selected for
promotion to LTC by the Fiscal Year (FY) 2003 LTC, Reserve Component/Army
Promotion List (RC/APL), Promotion Selection Board.  The promotion list was
published on 4 February 2003.  The applicant was promoted on 21 February
2004.

2.  In February 2003, the applicant was a MAJ, JA, serving in an O-4
position at Headquarters, 94th RSC, Ayer, Massachusetts.  Orders M-050-
0004, dated 19 February 2003, involuntarily mobilized the applicant on 24
February 2003 for a period of 365 days.  She performed her active duty and
she was separated on 20 February 2004 and returned to her TPU assignment.

3.  The Reserve Officer Personnel Management Act (ROPMA), a public law
enacted by Congress on 5 October 1994, prescribes policies and procedures
to consolidate and modernize the laws that govern the management of RC
officers. The law was implemented on 1 October 1996.  ROPMA provides that
in order to be eligible for promotion to LTC the maximum time in grade as a
MAJ is 7 years, and an officer selected 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 officer
must be serving in the Ready Reserve by the board convening date or serving
in a position requiring the higher grade.  Promotion cannot be effective
prior to approval of the respective board by the President.

4.  Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and
Warrant Officers Other Than General Officers) prescribes policy and
procedures used for selecting and promoting commissioned officers (other
than commissioned warrant 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).  It provides, in pertinent part, a USAR TPU
officer who is considered and selected by a mandatory promotion board will
be promoted and transferred from the unit to the IRR (Individual Ready
Reserve) unless the officer fills a vacancy in the unit in a higher grade
or is a JA officer assigned to a position up to one grade below the grade
to which promoted.

5.  As a result of the Global War on Terrorism, the Assistant Secretary of
the Army (Manpower and Reserve Affairs)(ASAM&RA), on 17 December 2003,
modified the USAR promotion policy under AR 135-155 (cited in paragraph 3,
above).  Under the new policy, promotable USAR officers who are mobilized
may be promoted immediately.  Following mobilization, the officer has 180
days in which to occupy a higher graded position or transfer to the IRR.
The policy contains a caveat for JA officers which states "[JA officers]
are not covered by the mobilization promotion policy [because they] are
already covered by AR 135-155 that allows for their promotion, to include
promotion while mobilized, without occupying a vacant unit position in the
higher grade."

6.  On 2 April 2004, the Office of The Judge Advocate General (OTJAG)
published Policy Memorandum 04-12, Subject:  USAR JAGC Overgrade Requests
for Mobilized Judge Advocates.  It states that TJAG is the overgrade
approval authority for all USAR Judge Advocates.  Promotable JA officers
serving on active duty may request promotion.  Those signing a statement
agreeing to locate, and accept assignment to a higher graded position, or
be transferred to the IRR will have 180 days following demobilization to
locate such a position.  Officers who are unwilling to sign the statement
may be promoted, but such promotion will expire 90 days after release from
active duty.

7.  In the processing of this case, an advisory opinion was provided by the
Military Personnel Actions Branch, US Army Human Resources Command (HRC),
St. Louis, Missouri.  The advisory opinion points out that the applicant
was recommended for promotion to LTC by the 2002 Army Promotion Board.  She
was subsequently mobilized on 24 February 2003 and released on 20 February
2004 in the rank of MAJ.  The applicant is a JA officer and, in accordance
with procedures, all JA officers are required to have promotion approval
from TJAG if not assigned to a higher graded position.  The applicant was
assigned to an O-5 position on 21 February 2004, the day after her release
from active duty.

8.  The advisory opinion additionally provides that the Reserve Officers
Personnel Management Act (ROPMA) became effective on 1 October 1996.  Under
ROPMA, a promotion list does not exist until the promotion board's
recommendations are approved by the President in accordance with Title 10,
United States Code, chapter 1405, Section 14308.  The effective date of
promotion may not predate the approval date by the President.  Further, 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.

9.  On 8 November 2004, the applicant responded to the above advisory
opinion by stating, in effect, that on 17 December 2003, the ASA (M&RA),
Assistant Secretary of the Army (Manpower and Reserve Affairs), modified
the Army's existing policy for promoting RC officers in the ranks of
captain through colonel.  The modified policy provides that a mobilized
USAR officer who is on an approved promotion list may be promoted
immediately when matched against a vacant position of the higher grade in
the USAR.  The officer serves in the higher grade while mobilized, but
within 180 days of demobilizing, must then be reassigned to the higher
graded position or transferred to the Individual Ready Reserve.  JA
officers were not covered by the mobilization promotion policy because Army
Regulation 135-155 allows for the promotion of JA officers without
occupying a vacant unit position in the higher grade.  The applicant states
that she and her Reserve unit commander requested an exception to TJAG's
policy so that she could be promoted while mobilized.  She received no
reply and presumes that is because TJAG did not issue his policy memorandum
until 2 April 2004.  She believes that this delay inadvertently caused her
to serve in the rank of MAJ an additional 9 months.

10.  On 17 August 2005, the Army Board for Correction of Military Records
(ABCMR) requested an advisory opinion from OTJAG.  The opinion, dated
19 October 2005, states:  the applicant reached her maximum time in grade
(MTIG) as a MAJ on 23 May 2003; she did not occupy a LTC billet at that
time and could not transfer to one because she was involuntarily mobilized;
she was released from active duty on 20 February 2004 and assigned to a LTC
billet and promoted on 21 February 2004.  The opinion discusses the 17
December 2003 ASA(M&RA) memorandum and opines that the applicant should
have been promoted to LTC on her MTIG date.  The OTJAG opinion recommends
the applicant's date of rank to LTC should be corrected to 23 May 2003 by
ABCMR action.  The applicant was provided a copy of the opinion and
concurred with it on 20 October 2005.

11.  AR 135-155 prescribes the policies and procedures of promotion of
Reserve officers.  Paragraph 4-9 of the regulation specifies that TPU and
Active Guard Reserve (AGR) officers selected by a mandatory board will be
promoted provided they are assigned/attached to a position in the higher
grade.  A TPU or AGR officer selected for promotion by a mandatory
promotion board, who is not assigned/attached to a higher grade will be
promoted on the date of assignment/attachment to a higher grade or the day
after release from TPU or AGR status.  The date of rank will be the date
the officer attained maximum time in grade (MTIG) or the date on which
assigned/attached to a position in the higher grade, whichever is earlier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to MAJ on 23 May 1996; her maximum time in
grade expired on 22 May 2003.  Had she not been involuntarily mobilized for
1 year on 24 February 2003, in all likelihood, she would have been promoted
to LTC on 23 May 2003 as were five fellow JA officers from her RSC.  The
evidence submitted by the applicant in paragraph 5a, above, does contain
the names of three JA officers from her RSC who were promoted to LTC.

2.  The Global War on Terrorism and the mobilization of large number of RC
officers necessitated a modification to promotion policies outlined in AR
135-155. The ASAM&RA permitted the promotion of RC officers on active duty
without actual assignment to a higher graded position in the Reserve.  Upon
leaving active duty, the officer had 180 days in which to occupy a higher
graded position or transfer to the IRR.  The policy apparently excluded JA
officers because the ASAM&RA reasoned that under AR 135-155, JA officers
could occupy a position one grade below their actual rank so their
promotions were assured [although OTJAG approval was required].

3.  The applicant states that she petitioned OTJAG attempting to gain
promotion throughout her mobilization duty, but received no response,
ostensibly because there was no policy in place.  While the applicant has
provided no evidence to support this claim, in light of the fact that OTJAG
Policy Memorandum 04-12 was not published until 2 April 2004, both elements
of her contention – no response and no policy – are accepted.

4.  The OTJAG did not publish a policy memorandum addressing mobilization
promotions until 2 April 2004.  The policy provided for promotion of
mobilized JA officers on a case-by-case basis with the stipulation that
officers promoted on active duty occupy the higher graded position within
180 days of returning to RC status.  In effect, the TJAG policy was more
restrictive than the policy announced by the ASAM&RA – the ASAM&RA policy
required standing on a promotion list in order to be promoted on active
duty, while the TJAG policy required standing on a promotion list and case-
by-case approval from the TJAG.

5.  The applicant has clearly suffered an injustice on two counts.  First,
she was denied timely promotion to LTC because she was involuntarily
mobilized.  Second, for reasons unknown, she was not approved for promotion
by OTJAG under an ASAM&RA policy granting promotion to mobilized RC
officers of all other branches of service.

6.  The OTJAG advisory opinion recommends that the ABCMR grant the relief
requested and adjust the applicant's date of rank to 23 May 2003.

7.  The HRC advisory opinion notwithstanding, as a matter of equity, it
would be proper to correct this injustice and grant the applicant's
request.

BOARD VOTE:

__jea___  __jam___  __lmd___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing that she was promoted to the rank of lieutenant colonel effective
23 May 2003, and by paying her all pay and allowances that she may be due.



                 James E. Anderholm
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004679                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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