IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:  AR20080013391 


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 of his date of rank (DOR) as a captain (CPT) from 12 June 1998 to 1 June 1997 and as a major (MAJ) from 1 July 2004 to 1 July 2003, or earlier if appropriate.

2.  The applicant states that his erroneous DOR as CPT resulted from the revision of the Reserve Officer Personnel Management Act (ROPMA).  He adds that his promotion was delayed by 1 year when the Army revised consideration for promotion requirements.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Diploma, dated 31 May 1990, Bachelor of Science Degree.

	b.  Headquarters, 575th Personnel Center, Orders Number 150-5, dated 29 May 1992, promotion to first lieutenant (1LT).

	c.  U.S. Army Reserve Personnel Command [now known as Human Resources Command or HRC], St. Louis, Missouri, memorandum, dated 9 July 1998, promotion to CPT.

	d.  Headquarters, U.S. Army Special Operations Command, Fort Bragg, North Carolina, memorandum, dated 8 September 2004, promotion to MAJ.

	e.  Headquarters, 1st Simulation Group (Exercise), 1st Brigade (Battle Command and Staff Training), 85th Division (Exercise), Fort Sheridan, Illinois, memorandum, dated 5 January 1997, appointment as a commander.

	f.  Headquarters, 1st Simulation Group (Exercise), 1st Brigade (Battle Command and Staff Training), 85th Division (Exercise), Fort Sheridan, Illinois, assumption of command memorandum, dated 6 January 1997.

	g.  DA Form 1059 (Service School Academic Evaluation Report), dated 7 December 2001, completion of the Field Artillery (FA) Officer Advanced Course.

	h.  Certificate of course completion, dated 13 February 2003, completion of the Phase II of the Captains Career Course.

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 records show he was appointed as a second lieutenant (2LT) in the FA Corps, executed an oath of office, and entered the Regular Army on 31 May 1990.  He subsequently completed the FA Officer Basic Course on 18 January 1991 and was promoted to 1LT on 31 May 1992.

3.  The applicant's records further show he was honorably discharged from the Regular Army on 1 June 1995 and transferred to the U.S. Army Reserve (USAR). He was assigned to a troop program unit, the 1st Simulation Group (Exercise), 1st Brigade (Battle Command and Staff Training), 85th Division (Exercise), Fort Sheridan, Illinois.

4.  Headquarters, 1st Simulation Group (Exercise), 1st Brigade (Battle Command and Staff Training), 85th Division (Exercise), Fort Sheridan, Illinois, memorandum, dated 5 January 1997, shows the applicant was appointed as the Commander, Headquarters and Headquarters Detachment, 1st Simulation Group (Exercise), 1st Brigade (Battle Command and Staff Training), 85th Division (Exercise), Fort Sheridan, Illinois, effective 7 January 1997.  However, the assumption of command memorandum shows an effective date of 6 January 1997.

5.  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 DORs for those who were first-time considered and selected for promotion to CPT, after having served more than 7 combined maximum years in grade (MYIG).

6.  On 9 July 1998, HRC-St. Louis notified the applicant that he was considered and selected for promotion to CPT effective 12 June 1998 by the 1996 Reserve Components Selection Board (RCSB) which convened on 12 November 1996 and recessed on 28 November 1996.  However, approval of this board was delayed until 12 July 1998.

7.  On 7 December 2001, the applicant completed the FA Officer Advanced Course (Phase I of the Captains Career Course) and, on 13 February 2003, he completed the Staff Process Course of the Combined Arms and Services Staff School (CAS3) (Phase II of the Captains Career Course).

8.  On 8 September 2004, by memorandum, Headquarters, U.S. Army Special Operations Command, Fort Bragg, North Carolina, notified the applicant that he was considered and selected for promotion to MAJ effective 1 July 2004 by the 2004 RCSB, which convened on 2 March 2004 and recessed on 19 March 2004. The board results were approved on 2 June 2004.

9.  The ROPMA prescribed the policies and procedures to consolidate and modernize the laws governing the management of Reserve Component officers.  ROPMA specified that a 2LT serve an MYIG of 2 years before promotion to 1LT, and a 1LT serve an MYIG of 5 years before promotion to CPT.  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 CPT.

10.  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).  The ROPMA promotion boards for CPTs were administratively delayed.  Presidential approval of the results of the pertinent ROPMA promotion boards was also administratively delayed.  Based on normal processing, they should have been convened earlier and approved approximately 75-100 days after the respective recess dates.  Based on the normal processing, the 1996 RCSB, which convened on 12 November 1996 and recessed on 26 November 1996, should have been approved on 1 February 1997.

11.  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 promotion consideration or reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's DOR to CPT, the evidence of record shows that based on the maximum of 7 years of service as a 2LT and 1LT, the applicant's MYIG date for promotion to CPT was 30 May 1997.  He was considered and selected for promotion to CPT by the 1996 RCSB.  However, approval of the results of this board was delayed until 12 July 1998 when it should have occurred on 1 February 1997.

2.  The applicant was assigned as a company commander, a CPT's position, on 6 January 1997.  Although he was fully qualified on that date, the earliest he could have been promoted to CPT was 1 February 1997, the date the 1996 RCSB should have been approved.  Therefore, if otherwise fully qualified, the applicant is entitled to correction of his DOR to CPT to show 1 February 1997.

3.  Based on this earlier DOR to CPT, the applicant should be reconsidered for promotion to MAJ by an SSB.  If the applicant is selected for promotion to MAJ, he is entitled to promotion to MAJ with an appropriate promotion date based on time in grade served as a CPT.


BOARD VOTE:

___X____  __X_____  ___X____  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:

	a.  showing his effective date and date of rank as a CPT as 1 February 1997 with entitlement to the pay and allowances; and

	b.  following adjustment of the applicant's DOR to CPT, the applicant's records be submitted to an SSB for promotion reconsideration to MAJ under the 2003 year criteria.  Additionally:

		(1)  if selected, his records be further corrected by showing he was promoted to MAJ on his date of eligibility, as determined by appropriate Departmental officials, provided he was otherwise qualified and met all other prerequisites for promotion, and that an adequate explanation be placed in his official personnel files to show any gap in his officer evaluation reports.

		(2)  if not selected, the applicant be so notified.


																XXX
      _________________________
                 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)                                         AR20080013391



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013391



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1