RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 September 2006
      DOCKET NUMBER:  AR20050011134


      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. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Jonathan K. Rost              |     |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 that his date of rank (DOR) to Captain (CPT) be
adjusted to 30 July 2001 or earlier and his First Lieutenant (1LT) DOR be
adjusted to 1 October 1996.

2.  The applicant states that prior to October 1996 the promotion policy
was that Second Lieutenants (2LTs) served 3 years time in grade (TIG) prior
to being promoted to 1LT and 1LTs served 4 years TIG before being promoted
to CPT.  Under the Reserve Officers Personnel Management Act (ROPMA),
policy was for 2LTs to serve 2 years TIG prior to being promoted to 1LT and
5 years TIG before being promoted to CPT.  In both cases, 1LTs served 7
years TIG before being promoted to CPT.  The policy change caused him to
serve almost 8 years as a 1LT.  He had already served 26 months TIG before
he was promoted to 1LT.  An earlier 1LT DOR would also adjust his CPT DOR.

3.  The applicant provides his DA Form 71 (Oath of Office – Military
Personnel); Federal Recognition orders dated 21 May 1997; his U. S. Army
Reserve (USAR) CPT promotion memorandum; a DA Form 1506 (Statement of
Service – for Computation of Length of Service for Pay Purposes); and two
internet articles on Reserve Component CPTs’ eligibility for back pay.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed a
2LT in the Army National Guard (ARNG) effective 12 August 1994.  He
completed his baccalaureate degree in 1995.  He completed the Officer Basic
Course on          3 November 1995.  He was promoted to 1LT, and granted
Federal Recognition, effective 21 May 1997.

2.  Effective 17 April 2001, the applicant was transferred to the USAR.
Effective 17 June 2001, he entered active duty in an Active Guard Reserve
(AGR) status in a CPT’s position.

3.  The applicant was considered and selected for promotion to CPT by the
2001 CPT Army Promotion List board.  The board results were approved on 1
March 2002.  He was issued a promotion memorandum dated 26 March 2002
indicating he was promoted to CPT with a promotion effective date and DOR
of 1 March 2002.

4.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers other than General Officers), effective 1 September 1994,
paragraph       4-17 stated a qualified 1LT would not be promoted before
the date of completion of 3 years of promotion service with two specified
exceptions (neither of which applied to the applicant).

5.  Army Regulation 135-155, effective 2 November 2001 and which
incorporated ROPMA provisions, paragraph 4-17 stated a qualified 1LT would
not be promoted before the date of completion of 2 years of promotion
service with one specified exception (which did not apply to the
applicant).

6.  Army Regulation 135-155, effective 1 September 1994, stated the TIG
requirement for promotion to CPT was 4 years for a mandatory board.

7.  Army Regulation 135-155, effective 2 November 2001, Table 2-1 states
the maximum TIG for promotion to CPT is 5 years.

8.  A ROPMA DOR Adjustment Project was instituted with the intent to ensure
that officers selected for CPT were promoted within 7 total years of
commissioned service.  Guidance at the time specified that the project was
for officers considered and recommended for promotion to CPT by a
Department of the Army Reserve Components Selection Board (i.e., a
mandatory board).

9.  The applicant provided two internet articles on Reserve Component CPTs’
eligibility for back pay based on the ROPMA DOR Adjustment Project.  The
articles indicated the adjustments were done in phases.  Phase I covered
CPTs selected by the promotion boards which convened from November 1999
through March 1998.  Phase II was for CPTs who were promoted by boards
which met from November 1998 through February 1999.  Phase III covered CPTs
who were promoted by boards which convened between November 1999 and
February 2000.

10.  On 16 August 2006, the Office of Promotions, Reserve Components, U. S.
Army Human Resources Command – St. Louis confirmed that the 2001 CPT
promotion board was not part of the ROPMA DOR Adjustment Project.  That
office also stated that, in most cases, a USAR 2LT whose promotion
eligibility point fell in the transition period would have had his/her DOR
adjusted to             1 October 1996, the effective date of ROPMA.  That
office further stated that an officer with a 1LT DOR of 1 October 1996
would have been considered for CPT by the 2000 promotion selection board
[and would have fallen within the ROPMA DOR Adjustment Project].  The 2000
promotion selection board convened on    13 November 2000, adjourned on 15
December 2000, and was approved on    20 March 2001.

11.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, National Guard Bureau.  That office noted that the
applicant was promoted to CPT while he was a member of the USAR.  That
office recommended disapproval of the applicant’s request to adjust his DOR
to 1LT because adjustments to DORs were only authorized for CPTs by the
Director, Army National Guard, at the time ROPMA took effect.  In November
2000, the National Guard published an article stating that some CPTs were
eligible for adjustment on their DOR on a case-by-case basis.  Lieutenants
were not included in the program due to promotion approval from 2LT to 1LT
being done at the State level whereas CPT promotion is done by a Department
of the Army mandatory selection board and then approved by the Secretary of
Defense.

12.  A copy of the advisory opinion was provided to the applicant for
comment.  The applicant rebutted that he believed ROPMA was not only for
CPTs, but was also for LTs at that time.  He knows of several officers who
were commissioned within 60 days of his commissioning date, and they were
promoted to CPT one year before he was.  He also provided additional
evidence – an extract from Army Regulation 135-155; page 1 (of 3) from a 15
February 2001 article from the Military.com website; an AMEDD (Army Medical
Department) Promotion Year Group Determination Chart from the U. S. Army
Human Resources Command website; and an Accelerated Mandatory Army Reserve
Captain Promotion Boards article from the U. S. Army Human Resources
Command website.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers) provides policy for selecting
and promoting commissioned officers of both the Army National Guard of the
United States and the USAR.  It states an officer in the grade of 2LT will
be considered for promotion without review by a selection board.  The
officer’s record will be screened to determine eligibility for promotion to
the next higher grade far enough in advance to permit promotion to the date
promotion service is completed.  The records of ARNG unit officers will be
screened and promotions accomplished by the Chief, National Guard Bureau.

14.  Army Regulation 135-155 states that an officer found not qualified for
promotion to 1LT who was retained in an active status may be promoted if
later determined qualified.  A memorandum for record will be prepared to
explain the later promotion date.  A copy of the promotion notice and the
memorandum for record will be placed in the officer’s Official Military
Personnel File (OMPF).  A copy of each will be sent to the Commander, U. S.
Army Human Resources Command, Chief, Office of Promotions (Reserve
Components).

15.  Army Regulation 135-155 states that AGR officers selected by a
mandatory board will be promoted provided they are assigned/attached to a
position in the higher grade.  The DOR will be the date the officer
attained maximum time in grade or the date on which assigned/attached to a
position in the higher grade, whichever is earlier.  Promotion to CPT also
requires completion of the necessary military education (officer basic
course) and civilian education (baccalaureate degree).

16.  There is no record of the applicant being found not qualified for
promotion to 1LT in his OMPF.

17.  National Guard Regulation 600-100 prescribes policies and procedures
governing, in part, the appointment, Federal Recognition, and separation of
commissioned officers of the ARNG.  Chapter 8 of the version dated 15 April
1994 stated that the promotion of officers in the ARNG is a function of the
State.  A commissioned officer promoted by State authorities has a State
status in the higher grade under which to function.  However, to be
extended Federal Recognition in the higher grade, the officer must have
satisfied the requirements prescribed in this chapter.

18.  National Guard Regulation 600-100, paragraph 8-6 of the version dated
    15 April 1994 stated that wearing of insignia of the higher grade is
not authorized until Federal Recognition has been extended by the Chief,
National Guard Bureau.  Paragraph 8-18 stated that a 2LT who is promoted to
the grade of 1LT will be extended Federal Recognition in the higher grade
on the date he or she completes 3 years of promotion service.

19.  By memorandum dated 11 September 1996, the National Guard Bureau
forwarded the ROPMA Implementation Guidelines Handbook to all the States
and Territories.  Paragraph 2-3 stated that 2LTs will be considered for
promotion to 1LT prior to reaching 24 months of commissioned service so
that they can be promoted upon reaching 24 months of commissioned service .
 However, they must also be qualified in all other respects in accordance
with National Guard Regulation 600-100.

20.  The Handbook stated that a 2LT found not qualified for promotion at
       24 months of commissioned service must be retained for at least 6
months from the date he/she should have been promoted if found qualified.
However, during this 6 month period, the Adjutant General of the State
concerned may request that the Chief, National Guard Bureau retain the
officer for up to an additional      12 months.  Should the officer become
qualified at any time during the period of retention, the officer can be
promoted to 1LT.  If still not qualified for promotion, the officer must be
separated no later than 18 months from the date the officer was first found
not qualified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed a 2LT in the ARNG on 12 August 1994.  At
that time, 3 years TIG as a 2LT was normally required for promotion to 1LT.
 However, ROPMA (which applied to all Reserve Component officers) came into
effect on 1 October 1996 and changed that requirement to 2 years TIG as a
2LT.

2.  Barring any impediment to promotion, the applicant should have been
promoted to 1LT effective 1 October 1996, the earliest date possible after
he completed 2 years TIG.  It is understood that the applicant was granted
Federal Recognition as a 1LT effective 21 May 1997.  However, there is no
promotion notice or memorandum for record in his OMPF indicating that he
was not found qualified for promotion to 1LT effective 1 October 1996 for
any reason.

3.  More importantly, National Guard Bureau ROPMA guidelines stated that
2LTs found not qualified for promotion at 24 months of commissioned service
must be retained for at least 6 months from the date he/she should have
been promoted if found qualified.  The Adjutant General of the State
concerned may request that the Chief, National Guard Bureau retain the
officer for up to an additional          12 months.

4.  The applicant was eligible for promotion to 1LT on 1 October 1996, the
earliest effective date he could have been promoted to 1LT after ROPMA came
into effect.  However, he was not promoted to 1LT until 21 May 1997, more
than 8 months later, and there is no evidence of record to show that the
State Adjutant General requested or that the Chief, National Guard Bureau
approved his retention beyond 6 months.  Therefore, a reasonable
presumption can be made that the applicant was not promoted to 1LT
effective 1 October 1996 as the result of an administrative oversight by
his unit at the time that ROPMA became effective.

5.  ROPMA did not change the total years (7) in service required for
promotion to CPT.  Nevertheless, because the TIG requirements were changed
for promotion to 1LT (from 3 years to 2 years) and for promotion to CPT
(from 4 years to          5 years), certain officers were penalized when it
came time for promotion to CPT. They had spent 3 years as a 2LT, but then
they were not promoted to CPT until they had served 5 years as a 1LT, for a
total of 8 years in service.  The ROPMA DOR Adjustment Project was intended
to rectify that inequity.

6.  The applicant was not properly considered for ROPMA DOR adjustment
because it appears he was not promoted to 1LT at the time ROPMA came into
effect.  He was selected for promotion to CPT the first time he was
considered.

7.  Had the applicant been promoted to 1LT effective 1 October 1996, he
would have been eligible for promotion consideration to CPT by the 2000
promotion selection board.  The applicant met the 7 years time in service
requirement for promotion to CPT on 12 August 2001.  The 2000 promotion
selection board was approved on 20 March 2001, and he was assigned to a CPT
position on 17 June 2001.  Therefore, it would be equitable to adjust his
CPT DOR and effective date to 17 June 2001.

BOARD VOTE:

__sap___  __dkh___  __jkr___  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:

     a.  the State Army National Guard records and all Department of the
Army records of the individual concerned be corrected by showing he was
promoted to 1LT effective 1 October 1996 and granted Federal Recognition as
a 1LT effective 1 October 1996; and

     b.  all Department of the Army records of the individual concerned be
corrected by showing he was promoted to CPT with a date of rank and
effective date of 17 June 2001.




                                  __Susan A. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011134                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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