RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060007549 


	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. Gerard W. Schwartz

Acting Director

Mr. G. E. Vandenberg

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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) as a first lieutenant (1LT) and his promotion to captain be backdated.

2.  The applicant states he was credited with 4 years of constructive service credit.  Three of these years justified his appointment as a 1LT, but the 4th year should have caused his date of rank to be one year earlier.  Because of the error in his date of rank, he was not considered for captain by the 2001 promotion board but was considered and selected by the 2002 promotion board.

3.  The applicant provides copies of his Letter of Appointment, an excerpt from Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), an excerpt from Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), two pages of e-mails related to his attempts in 2000 to correct his date of rank, a printout of the results from the 2002 promotion board, orders promoting him to captain, orders amending his date of promotion, a 6 March 2001 Certificate of Completion of the Judge Advocate Officer Basic Course, and two Officer Evaluation Reports (OERs).

CONSIDERATION OF EVIDENCE:

1.  The records show the applicant was appointed a United States Army Reserve (USAR) 1LT, in the Judge Advocate General's Corps (JAGC), on 21 June 1999, with a date of acceptance and effective date of appointment of 30 June 1999.  The appointment letter shows he was given 4 years of constructive service credit.

2.  The e-mails provided by the applicant indicate he attempted to correct his date of rank in July and August of 2000 without success.

3.  The applicant completed the required Judge Advocate Officer Basic Course on 6 March 2001.

4.  The Secretary of the Army established the promotion zone for the 2001 Captain's Reserve Components Selection Board (RCSB) for officers with the dates of rank for first lieutenant from 17 May 1997 to 31 May 1998.  The 2001 RCSB was convened on 13 November 2001, recessed on 14 December 2001, and approved on 1 March 2002.  With an adjusted DOR of 30 June 1998, the applicant was not eligible for consideration by this board.

5.  The established promotion zone for the 2002 Captain's RCSB was 1 June 1998 to 30 June 1999.  On 19 September 2003, the applicant was notified that the 2002 RCSB selected him for promotion to captain and was given an effective date of promotion of 27 August 2003. 

6.  On 25 February 2004, his effective date of promotion was adjusted to 5 April 2003.

7.  In the development of this case an advisory opinion was obtained from the Department of the Army, Office of The Judge Advocate General, Deputy Chief, Army Reserve Management, Personnel Plans and Training Office.  It was noted that Judge Advocate General's Corps officers are given one year constructive credit toward their date of rank, resulting in a date of rank that is one year earlier than their actual date of appointment.  It was further noted that an oversight resulted in the applicant's DOR not being adjusted and his not being considered by the 2001 promotion board.  Had the applicant's DOR been correctly calculated, upon appointment, he would have been considered for promotion by the 2001 captain promotion selection board.  The applicant was fully qualified for promotion, prior to the convening of the 2001 promotion board, and all fully qualified 1LTs were selected for promotion by the 2001 promotion board.

8.  A copy of the advisory opinion was forwarded to the applicant and he concurred with the findings.

9.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), paragraph 3-12, states as follows:

	a.  Persons receiving original appointments as USAR officers with assignment to the JAGC will be appointed in the highest grade to which they are entitled under 10 USC 3359.  Officers with more than three but less than seven years of constructive credit are to be appointed in the grade of 1LT;

	b.  Three years of constructive service credit is given for award of the first professional law degree by a law school accredited by the American Bar Association at the time the applicant received the degree; and

	c.  The date of rank of an officer commissioned in the USAR and assigned to the JAGC is the date of appointment further backdated by the period of commissioned service credit in excess of that amount used to establish the officer's appointment grade.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that officers in the grade of 1LT may be promoted to CPT upon completion of a minimum of 2 years time in grade, selection by a mandatory promotion board, and upon meeting all requirements for promotion.  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 years of service, but not prior to the date the President approves the Board recommendations.  Table 2-2 lists the educational requirement for promotion to captain as completion of a resident officer basic course.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted his appointment as a 1LT on 30 June 1999 and was granted four years of constructive credit.  Under the pertinent regulations for appointment of JAGC officers, the applicant's date of rank to 1LT should have been adjusted to 30 June 1998.  It is appropriate to correct the recodes to show a DOR to 1LT of 30 June 1998.  

2.  The correction to his DOR does not involve any consideration of back pay since his effective date remains 30 June 1999, the date of his appointment and pay is based on the effective date, not date of rank.

3.  The applicant may have met the military education requirements; however, based on his adjusted date of rank and the window for promotion consideration, he was not qualified for consideration by the 2001 Captain's RCSB since he was not within that board's zone of consideration.  He was properly identified and considered by the 2002 Captain's RCSB, as such he is not entitled to an SSB consideration under the 2001 year criteria.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__DED__  __WDP__  __WFC _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show the applicant's date of rank, to first lieutenant, was 30 June 1998. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an earlier date of promotion to captain and entitlement to retroactive pay and allowances in the higher grade. 




__      William D. Powers_______
          CHAIRPERSON


INDEX

CASE ID
AR20060007549
SUFFIX

RECON
 
DATE BOARDED
20070426
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
                         
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
129
2.
131
3.

4.

5.

6.