RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 September 2004
      DOCKET NUMBER:   AR2004099924


      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             |
|     |Mrs. Carolyn Wade                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Karen Y. Fletcher             |     |Member               |
|     |Mr. Ronald E. Blakely             |     |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 his date of rank to major be
adjusted from 19 July 2000 to his promotion eligibility date (PED) of 31
August 1998.

2.  The applicant states, in effect that, in accordance with the Reserve
Officer Personnel Management Act (ROPMA), the time in grade from captain
(CPT/03) to major (MAJ/04) is 7 years, and he was promoted after the 7th
year.  He states that his current date of rank is 19 July 2000; however,
since he was promoted to CPT/03 on 1 August 1991, the record needs to be
adjusted.

3.  The applicant provides the following documents in support of his
application:

      a.  A Copy of Orders Number 105-053, U.S. Total Army Personnel
Command [Human Resources Command], dated 3 July 1991 announcing the
applicant's promotion to captain.

      b.  A copy of his Officer Record Brief (ORB),

      c.  A copy of his DD Form 214 for the period ending 1 April 1999.

      d.  A copy of DA Form 1506 (Statement of Service for Computation of
Length of Service for Pay Purposes), dated 14 October 2003, showing
creditable service as 17 years of combined active and reserve service.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he entered active duty as a
second lieutenant (2LT/01), US Army Reserve (USAR) on 16 June 1988.

2.  On 1 August 1991, the applicant was promoted to captain (CPT/03) in the
USAR and was subsequently twice nonselected for promotion to major.

3.  On 15 October 1998, the applicant was notified that he would be
released from active duty on 1 April 1999 and transferred to the USAR as a
two time nonselection for promotion to major.

4.  The evidence of record shows the applicant was considered for promotion
by the first available DA Reserve Components Selection Board and was
selected for promotion to MAJ/04 on 19 July 2000.

5.  He was separated on 1 April 1999 with 10 years, 9 months, and 16 days
of creditable active Federal service.  He was transferred to the USAR
control group (reinforcement).

6.  On 19 July 2000, the President of the United States approved the
promotion board and the applicant was promoted to the rank of MAJ/04 in the
USAR.

7.  The applicant’s military records show he is currently serving as a
MAJ/04 in the USAR, Active Guard Reserve (AGR) Program.

8.  In the processing of this case, a staff advisory opinion was obtained
from the U.S. Army Human Resources Command, Office of Promotions, Reserve
Components, St. Louis, Missouri.  The advisory opinion stated that:

      a.  The minimum time in grade for promotion to major is 7 years for a
Reservist on the Reserve Active Status List (RASL); however, on the
anniversary of her seventh year, the applicant was on active duty and could
not be considered for promotion by a DA Reserve Components Selection Board.


      b.  The applicant was considered by the first reserve promotion board
after his release from active duty and was recommended for promotion.

      c.  The President approved the board on 19 July 2000 and this is the
applicant's date of rank.

      d.  Based on the ROPMA an officer cannot be promoted prior to the
President approving the board.  The applicant was provided a copy of the
advisory opinion for possible rebuttal; however, to date he has not
provided one.

9.  The ROPMA was enacted by Congress on 5 October 1994.  It prescribes the
policies and procedures to consolidate and modernize the laws that govern
the management of Reserve component officers.  The law was implemented on
1 October 1996.  It provides:

      a.  In order to be eligible for promotion to major the maximum time
in grade MTIG for a captain is 7 years, and that an officer selected for
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.

      b.  An AGR officer must be serving in a position requiring the higher
grade or assigned to the Individual Ready Reserve.  Promotion cannot be
effective prior to approval of respective boards by the President.
10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was serving on active duty
when he was twice nonselected for promotion to MAJ/04 and was subsequently
released from active duty and transferred to the USAR.  He was not subject
to ROPMA promotion policies during his active service.

2.  The evidence of record shows the applicant was selected by the first
available reserve promotion board after his release from active.

3.  The evidence of record shows the applicant was serving on active duty
when he met his 7 years time in grade under ROPMA and was not eligible to
be considered by a DA Reserve Components Selection Board.

4.  The evidence of record shows the minimum time in grade for promotion to
major is 7 years for a Reservist on the Reserve Active Status List.
Therefore, the 7-year time in grade does not apply to the applicant because
he was not a Reservist on the Reserve Active Status List when he met the 7-
year time in grade.

5.  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 19 July 2000.  Therefore, the applicant's
date of rank is correct as shown and there is no reason to change it.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fe____  __kyf___  __reb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                 Fred Eichorn
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004099924                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040928                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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