RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060010991 


	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.  


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	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 26 April 2004, the date of his mobilization into active duty.  

2.  The applicant states he graduated with the 163rd Judge Advocate Officer Basic Course (JAOBC) in January 2004.  As a reservist, he returned to civilian life while the majority of his class proceeded to the Judge Advocate General (JAG) School in Charlottesville, Virginia.  He states the majority of his class was promoted to CPT within a short time following their graduation.  In April 2004, the time his classmates were graduating from Phase II of JAOBC, he was ordered to active duty where he served approximately 22 months in the rank of first lieutenant (1LT).  He was released from active duty in February 2006, but he had been promoted to CPT in January 2006.  He requests his DOR to CPT be backdated commensurate with his class [JAOBC] because they graduated from the same class and served on active duty at the same time.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 February 2006; his active duty orders for mobilization for Operation Noble Eagle, dated 22 April 2004; his active duty orders for mobilization for Operation Noble Eagle, dated 14 January 2005; his Certificate of Completion from the Reserve Component (RC) JAOBC, dated 17 March 2004; and his active duty for training orders, dated 20 November 2003.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the U.S. Air Force and the U.S. Air Force Reserve, the applicant was appointed as a Reserve commissioned officer on 12 March 2003 in the rank of first lieutenant (1LT).

2.  Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri (HRC-STL) Orders T-11-314711, dated 20 November 2003, ordered the applicant to active duty for training (ADT) for Phase I of the JAOBC with a report date of no later than 4 January 2004.  His Service School Academic Evaluation Report (DA Form 1059) shows he completed the 163rd JAOBC on 30 January 2004.

3.  The applicant’s Certificate of Completion shows he completed Phase II of the JAOBC on 17 March 2004.

4.  Department of the Army, 90th Regional Readiness Command, North Little Rock, Arkansas Orders 04-111-00021, dated 20 April 2004, reassigned the applicant to the 90th Regional Readiness Command, North Little Rock, Arkansas.

5.  The applicant was ordered to active duty on 21 April 2004 in support of Operation Noble Eagle.  

6.  Department of the Army, 90th Regional Readiness Command, North Little Rock, Arkansas Orders 04-113-00001, dated 22 April 2004, ordered the applicant to active duty for assignment to Fort Sam Houston, Texas on 2 May 2004 for a period of 365 days.

7.  Department of the Army, 90th Regional Readiness Command, North Little Rock, Arkansas Orders 05-014-00025, dated 14 January 2005, ordered the applicant to active duty for assignment at Fort Bliss, Texas on 8 February 2005 for a period of 365 days.

8.  Department of the Army, HRC-STL Orders B-03-601825, dated 7 March 2006, promoted the applicant to the rank of CPT with an effective date and DOR of 20 January 2006.

9.  The applicant was discharged from active duty on 4 February 2006 and he was transferred back to the 90th Regional Readiness Command, North Little Rock, Arkansas on the following date.  His DD Form 214 for the period ending 4 February 2006 shows his rank and pay grade as 1LT, O2 with an effective date of pay grade as 12 March 2002.

10.  Department of the Army, U.S. Army Human Resources Command, Alexandria, Virginia Orders A-01-701638, dated 22 January 2007, ordered the applicant to active duty for a temporary tour of active duty at Fort Rucker, Alabama with a report date of 5 February 2007 for a period of 365 days.

11.  In the processing of this case, a staff advisory opinion was obtained from the Chief of Special Actions Branch, Office of Promotions, Reserve Components, HRC-STL.  The Chief of Special Actions Branch recommended the applicant’s request be denied.  The opinion stated the applicant was commissioned in the U.S. Army Reserve on 12 March 2003 as a 1LT in the JAG Corps with 1 year time in grade (TIG).  Accordingly, his DOR was adjusted to 12 March 2002.  His promotion to CPT required 5 years TIG; therefore, his promotion eligibility date (PED) was 11 March 2007.  The opinion stated the applicant was considered for promotion to CPT by the 2005 Department of the Army Reserve Components Selection Board and was recommended for promotion.  The opinion also stated that under the Reserve Officers Personnel Management Act (ROPMA), an officer could not be promoted until the board had been approved by the President of the United States.  The board was approved by the President on 20 January 2006 and the Office of The Judge Advocate General approved the applicant’s assignment to an authorized slot effective that date.  Therefore, he was issued a promotion order with a DOR of 20 January 2006.

12.  The opinion further stated it was unknown what the status was of other students at the course; however, if they were on the Active Duty List, they fell under the laws and regulations of the active Army.  Since the applicant was on the Reserve Active Status List, he fell under the law and regulations of the U.S. Army Reserve, which is 5 years TIG; however, there is an exception to that rule.  If the officer was serving in the higher graded position or the Office of The Judge Advocate General authorized his position, then he would be promoted on the day the board was approved.  This office recommended the applicant’s request be denied and it should be noted that the applicant was promoted 14 months before he completed the maximum TIG.  

13.  A copy of the advisory opinion was forwarded to the applicant in order to allow him to submit possible rebuttal.  However, he did not respond within the allotted timeframe.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to CPT through lieutenant colonel.

15.  Paragraph 4-21 of Army Regulation 135-155 covers the effective dates of promotion.  It states, in pertinent part, that unit officers selected by a mandatory board will have a promotion date and effective date no earlier that the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.  

16.  ROPMA, a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers.  The law became effective 1 October 1996.  Under ROPMA, the maximum years of service in grade (MYIG) for a Reserve 1LT in order to be eligible for promotion to CPT is 5 years.  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 selected Individual Ready Reserve (IRR) officers do not have to be in a higher grade position at the time of promotion on their MYIG date, and the other than IRR officers must occupy the higher position for promotion or transfer to an IRR status.  

17.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (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.  The table in subsection (a) establishes the maximum years of service in grade for a 1LT to be promoted to CPT as 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a Reserve commissioned officer in the rank of 1LT on 12 March 2003 with one year TIG.  Therefore, his DOR to 1LT was adjusted to 12 March 2002.  His PED for promotion to CPT was 11 March 2007 based on 5 years TIG.

2.  The advisory opinion states the applicant was selected for promotion to CPT by the 2005 Department of the Army Reserve Components Selection Board, and the board was approved on 20 January 2006.  By law, the applicant could not be promoted until the board was approved.  Therefore, his effective date and DOR for promotion to CPT should remain 20 January 2006.

3.  It cannot be determined whether the other students, who graduated from the same JAOBC as the applicant, were on the Active Duty List or the Reserve Active Status List.  Therefore, a comparison between the applicant and other students cannot be made.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x______ x_____  x_____  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060010991
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070501
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
102.0700
2.

3.

4.

5.

6.