IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080011746 


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 adjustment to his date of rank (DOR) for captain from 25 June 1998 to 11 May 1997.

2.  The applicant states, in effect, that his date of rank should be adjusted to a date that reflects a maximum of 7 combined years of service as a lieutenant.  He also states when the error was discovered by the Army, and he received a packet for correction.  He submitted the completed packet through his troop program unit (TPU) administrative section and the changes did not occur.  He recently discovered that it was still possible to make changes.

3.  The applicant provides copies of his appointment memorandum and his promotion memorandums for first lieutenant and captain, in support of his application.

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 as a second lieutenant in the United States Army Reserve, effective 11 May 1990.  He was promoted to first lieutenant effective 30 May 1993.

3.  A staff member of the Office of Promotions, Reserve Components, Human Resources Command, St. Louis, Missouri, verified the applicant was assigned to a captain's position effective 1 March 1997.

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 10 May 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 and this became his DOR to captain.  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 captain and prior to his promotion 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.  The applicant was promoted to captain effective 25 June 1998.

8.  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 Army Board for Correction of Military Records (ABCMR) which could adjust dates of rank for those who were first-time considered and selected for promotion to captain, after having served more than 7 combined MYIG as a lieutenant.

9.  The Reserve Officer Personnel Management Act (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.

10.  ROPMA further specifies that TPU officers 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).

11.  The 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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to adjustment to his promotion effective date and date of rank for captain to 1 March 1997, the date of his assignment to a captain's position, 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 captain 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 captain with an adjusted date of rank, as determined by his appropriate commander/manager, and has met all other prerequisites for promotion on 1 March 1997.

4.  The applicant was prevented 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 may 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.  It is concluded therefore, that had he been timely considered for promotion prior to his MYIG date, and based on his first-time consideration/selection, a reasonable chance would have resulted that he would have been selected and respectively promoted on or before his MYIG date, and entitled to an earlier promotion, date of rank, and pay and allowances.

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 captain with an adjusted promotion effective date and date of rank of 1 March 1997, with entitlement to the pay and allowances in the higher grade on that date. 



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               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)                                         AR20080007647



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ABCMR Record of Proceedings (cont)                                         AR20080011746


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