IN THE CASE OF:	

		BOARD DATE:	  3 February 2009

		DOCKET NUMBER:  AR20080006638


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, adjustment to his date of rank (DOR) for captain from 10 April 1998 to 2 October 1997 and adjustment to his DOR for major from 2 June 2004 to the approval date of the 2003 Reserve Components Selection Board (RCSB).

2.  The applicant states, in effect, that his DOR should be adjusted to a date that reflects a maximum of 7 combined years of service as a lieutenant.  He also states that he was not eligible for promotion to captain on 8 June 1996 as he was serving in a first lieutenant position.  Therefore, he was not eligible until he entered the United States Army Reserve (USAR) Control Group (Reinforcement) on 2 October 1997.  He further states, in effect, that if he had been promoted to captain when he should have been (i.e. 2 October 1997) he would have been considered for major in 2003 and not 2004 and would thus be eligible for promotion to lieutenant colonel in 2010.

3.  The applicant further stated that the initial error occurred more than 3 years ago, but he just noticed that a memorandum, dated 7 May 1998, was posted to his Human Resources Command (HRC), St. Louis, Missouri, records on 20 November 2007.  This memorandum reflects a promotion eligibility to captain with a date of rank of 11 November 1997.

4.  In support of his application, the applicant provides copies of appointment memorandums for second and first lieutenant, his required military education completion certificates, his captain promotion eligibility memorandum, his promotion memoranda for captain and major, and a Reserve Officer Personnel Management Act (ROPMA) Project Record of Proceedings.
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 Army Board for Correction of Military Records (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 New York Army National Guard (NYARNG), as a second lieutenant, effective 9 June 1989. He was appointed in the USAR, as a second lieutenant, effective 9 June 1990.  He was promoted to first lieutenant effective 2 June 1992.

3.  The applicant was released from the USAR Control Group (Reinforcement) and appointed in the NYARNG, as a first lieutenant, effective 14 November 1993. He was transferred to the Inactive ARNG (ING) effective 1 August 1994 and reassigned to an active Guard unit effective 1 January 1995.  He was transferred to the Georgia ARNG effective 10 January 1996.

4.  Based on the maximum of 7 combined years of service as a first and second lieutenant, his maximum years of service in grade (MYIG) for promotion to captain was originally 8 June 1996.  Based on his period of ING service of 4 months and 29 days, his MYIG dates should have been adjusted to 7 November 1996.

5.  The applicant was considered and selected for promotion to captain by the 1996 RCSB, which convened on 12 November and recessed on 26 November 1996.  The President approved the board results on 12 June 1998.  

6.  The applicant was separated from the GAARNG, as a first lieutenant, effective 2 October 1997 and was transferred to the USAR Control Group (Reinforcement) (i.e., the Individual Ready Reserve (IRR)).  

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 captain 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 DORs for those who were first-time considered and selected for promotion to captain, after having served more than 7 combined MYIG as a lieutenant.

8.  The applicant was released from the Control Group and assigned to a troop program unit (TPU) effective 10 April 1998.  He was issued a promotion memorandum, dated 15 January 1999, showing his promotion to captain with a promotion effective date and date of rank of 10 April 1998, based on his assignment to a captain's position and meeting all educational requirements.

9.  On 7 May 1998, the Total Army Personnel Command (currently known as HRC), St. Louis, advised the ARNG of the applicant's selection for promotion to captain by the 1996 RCSB.  The memorandum also advised that the effective date of his promotion would be the later of the following:  (1) 7 November 1997, or (2) the date Federal Recognition was extended in the higher grade, or (3) the date following the termination of Federal Recognition.

10.  The Secretary of the Army established the promotion zone for the 2003 major RCSB for officers with dates of rank for captain from 1 June 1996 through 30 June 1997.  The established promotion zone for the 2004 major RCSB was for officers with dates of rank for captain from 1 July 1997 through 30 June 1998.

11.  The applicant was considered and selected for promotion to major by the 2004 RCSB that convened on 2 March and recessed on 4 April 2004.  The board results were approved on 2 June and released on 1 July 2004.

12.  The applicant was issued a promotion memorandum, dated 1 July 2004, promoting him to major effective 2 June 2004, with a same date of rank, based on the approval date of the board.

13.  Based on his date of rank of captain of 10 April 1998 and completion of the required 7 maximum years of service, his promotion eligibility date for major was 9 April 2005.

14.  In an advisory opinion, dated 2 June 2008, the Chief, Special Actions Branch, DA Promotions, HRC, St. Louis, stated that the applicant was considered and selected by the 1996 RCSB that convened on 12 November 1996 and was approved on 12 June 1998.  A select letter dated 7 May 1998 was sent to the ARNG informing them of the selection.  By the time the select letter was sent, the applicant had transferred from the ARNG to the IRR on 2 October 1997 and then transferred to a TPU on 10 April 1998.  He was given 10 April 1998 as his DOR for captain for reasons the Special Actions Branch were unaware of.  He was under the United States Army Special Operations Command at the time and they were the approval authority for their officers.  A Soldier could not have a DOR earlier than the board approval date from which he was selected.  The board's approval date was 12 June 1998 and he was promoted 2 months prior to the approval date.  

15.  The HRC official also stated that the applicant suggests that if he is given an earlier DOR for captain, he would have made major earlier, and would then be considered for lieutenant colonel earlier.  The applicant would have had to have gone to an earlier board for promotion to captain for any of this to happen.  The applicant did not mention in his request that he was in the ING for a period of time that prevented him from consideration by an earlier board.  In accordance with Army Regulation 135-155, paragraph 2-6, an officer will not be considered for promotion until at least 1 year after his or her return to an active status.  He was considered by the earliest board possible for promotion to captain.  Based on this information, he recommended denial of the applicant's request for an earlier DOR for captain.

16.  The advisory opinion was provided to the applicant on 12 June 2008.  In his rebuttal, dated 23 June 2008, the applicant stated in effect, that the facts cited in the ROPMA Project Record of Proceedings are similar to his case.  He also stated, in effect, that he knows many officers commissioned in 1989 and selected for promotion by the 1996 RCSB.  Because the Presidential approval of this board was administratively delayed for an unusual length of time (i.e. 19 months) the DOR of these officers was back dated accordingly.  Had he been in a captain's position in 1996 his DOR for captain would have been adjusted as well.

17.  In addition, the applicant reiterated the language used in the ROPMA Project Record of Proceedings and advisory opinion.  He further stated that his time in the ING is not relevant to his case.  Therefore, he asked that the Board adjust his DOR to captain to 2 October 1997.  Furthermore, based on that DOR adjustment, he requested that his DOR to major be adjusted to reflect the same date as officers selected by the 2003 RCSB and conversely he should be made eligible for promotion to lieutenant colonel (below the zone) by the September 2008 board and for (primary zone) consideration by the September 2009 board.

18.  The ROPMA prescribed the policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers.  ROPMA specified that a second lieutenant serve a MYIG of 2 years before promotion to first lieutenant, and a first lieutenant 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 second lieutenant and 4 years as a first lieutenant before promotion to captain.

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

20.  The 1996 through 2000 ROPMA promotion boards for captains 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.

21.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Components officers.  This regulation specifies that completion of 7 years MTIG is required before promotion to major and lieutenant colonel.  Officers assigned to a TPU must be serving in a position requiring the higher grade or assigned to the IRR.  In addition, IRR officers selected by a mandatory promotion board must have completed the MTIG for promotion to the next higher grade.  The officer's promotion effective date and date of rank will be no earlier than the date the board is approved, or the date the officer meets the MTIG, whichever is later.

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 captain to 2 October 1997.  This is the date he would have been promoted had he been timely considered for promotion prior to his MYIG date and based on his first time selection and assignment to IRR at the time.  He is also entitled to back pay and allowances based on this adjustment.

2.  Notwithstanding the advisory opinion provided in this case, the applicant’s actions did not contribute to the unreasonable delay and he should not be penalized by a late promotion.  Although the applicant was selected for promotion to captain the first time he was considered after the enactment of ROPMA, the delay of his promotion created an injustice that should now be corrected.  The further delay for promotion board proceeding preparation and processing for Presidential approval compounded the unfair circumstances.  The evidence shows the applicant is otherwise qualified for promotion to captain with an adjusted DOR and back pay and allowances.  

3.  The applicant's contention that if he had been promoted to captain on 2 October 1997 he would have been considered for promotion to major in 2003 has been noted.  However, based on the established promotion zones for consideration by the 2004 RCSB, a DOR of 2 October 1997, also established his eligibility for consideration by the 2004 RCBS and not the 2003 RCSB.  Therefore, it is concluded that the applicant does not have a basis for promotion consideration to major under the 2003 year criteria or promotion to major based on the approval date of the 2003 RCSB.  He was promoted to major on the earliest date he was eligible and in a timely manner and he has not shown otherwise.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  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 by showing he was promoted to captain with an adjusted promotion effective date and date of rank of 2 October 1997, with entitlement to the pay and allowances in the higher grade on that date. 

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 promotion consideration to major under the 2003 year criteria or promotion to major based on the approval date of the 2003 Reserve Components Selection Board.  




      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080006638



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ABCMR Record of Proceedings (cont)                                         AR20080006638


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