RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080000528 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 an adjustment to his date of rank (DOR) for captain (CPT) from 25 June 1998 to 25 June 1997.

2.  The applicant states, in effect, that he makes his request based on the change to the Reserve Officer Personnel Management Act (ROPMA) promotion time in grade (TIG) requirement.  The applicant contends that he submitted a packet to the Army Board for Correction of Military Records (ABCMR) in December 2003, and never received a response.  

3.  The applicant provides a copy of his ARPC Form 155-R (Test), Promotion Qualification Statement; a copy of his DA Form 1059 (Service School Academic Evaluation Report); a copy of his college transcript; a copy of his unit's manning roster; and a copy of his Officer Evaluation Report as a company commander for the period 9 June 1997 through 23 April 1998. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he was appointed in the U.S. Army Reserve (USAR) as a second lieutenant (2LT) effective 13 May 1990.  He was promoted to first lieutenant (1LT) effective 30 May 1993.

3.  Based on the maximum of 7 combined years of service as a lieutenant, his maximum years of service in grade (MYIG) for promotion to captain was 12 May 1997.

4.  The applicant's OER for the period 9 June 1997 – 23 April 1998 verifies that he was assigned to a CPT's position effective 9 June 1997.


5.  The applicant was considered and selected for promotion to captain by the 1997 Reserve Components Selection Board (RCSB), which convened on
13 November and recessed on 12 December 1997.  The President approved the board results on 25 June 1998.  He was promoted to CPT effective 25 June 1998.  Based on his MYIG he should have been considered by the 1996 RCSB that the President approved on 12 June 1998.  

6.  The applicant's records show that he completed the required military and civilian education for promotion prior to being promoted to CPT and prior to his eligibility (MYIG) date.  The promotion qualification statement submitted by the applicant verified the required position assignment, active status, medical qualification, and security clearance for promotion purposes.

7.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) acknowledged that pertinent Army agencies had agreed that the faulty promotion policy for promotion to CPT should be revised, and that actions would be initiated for this purpose.  He further stated that affected individuals would be advised they could seek relief from the ABCMR which could adjust DOR’s for those who were first-time considered and selected for promotion to CPT, after having served more than 7 combined MYIG as a lieutenant.

8.  The ROPMA prescribes the policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers.  ROPMA specified that a 2LT serve a MYIG of 2 years before promotion to 1LT, and a 1LT serve a MYIG of 5 years before promotion to captain.  The Reserve Officer Personnel Act in effect prior to ROPMA required completion of 3 years as a 2LT and 4 years as a 1LT before promotion to captain.

9.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve or an Individual Mobilization Augmentee position.  Promotion policy also requires completion of the necessary military education (officer basic course) and civilian education (baccalaureate degree).

10.  The ROPMA promotion boards for CPTs were administratively delayed.  The Presidential approvals of the results of the pertinent promotion boards were also administratively delayed.  Based on normal processing, they should have been convened earlier and approved approximately 75 days after the respective recess dates.  Based on the normal processing the 1996 RCSB, which convened on 12 November and recessed 26 November 1996 should have been approved on 1 February 1997.
DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to adjustment to his promotion effective date and DOR for CPT to 9 June 1997, the date of his assignment to a CPT's position and the date he would have been promoted had he been timely considered for promotion prior to his MYIG date.  The applicant was unjustly and unfairly required to serve beyond the required MYIG.

2.  Although the applicant was selected for promotion to CPT the first time he was considered after the enactment of ROPMA, the untimely promotion consideration and delay of his promotion created an injustice that should now be corrected.

3.  The applicant is otherwise qualified for promotion to CPT with an adjusted DOR, as determined by his appropriate commander/manager, and met all other prerequisites for promotion on 9 June 1997.

4.  The applicant was precluded from equitable promotion consideration, unlike others in his grade in earlier and later year groups who were considered before and after him, and was unjustly considered well after his eligibility.  He was eligible for promotion consideration prior to his MYIG date so that, if selected, he could have been promoted on or prior to his MYIG date.  He was unjustly required to serve in grade beyond the 7 years required by ROPMA and denied timely consideration.  The further delay for promotion board proceeding preparation and processing for Presidential approval compounded the unfair circumstances.  Had he been timely considered for promotion prior to his MYIG date, and based on his first time consideration and selection, it is reasonable to presume he would have been selected and promoted on or before his MYIG date, and entitled to an earlier promotion effective date, an adjusted DOR, and entitled to the pay and allowances in the higher grade.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 he was promoted to CPT with an adjusted promotion effective date and DOR of 9 June 1997, with entitlement to the pay and allowances in the higher grade on that date. 





							XXX
      ______________________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080000528



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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