IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090009463 


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 dates of rank for captain and major based on a change to the Army Reserve time-in-grade promotion policy.

2.  The applicant states, in effect, that his date of rank for captain should be adjusted from 25 June 1998 to 25 June 1997 and his date of rank for major should be adjusted from 2 June 2004 to 17 July 2003 under the provisions of the Reserve Officer Personnel Management Act (ROPMA).  He also states that ROPMA changed his time in grade for promotion to captain from 8 years to 7 years.  He was not promoted to captain in 7 years, but rather he was promoted to captain in 8 years.  This put him 1 year behind his year group for promotion to major and lieutenant colonel.  He would like to be considered for promotion to lieutenant colonel with his peers and in the zone for the upcoming lieutenant colonel promotion board to be conducted in September 2009.

3.  In support of his application, the applicant provides copies of his Individual Ready Reserve (IRR) assignment orders; his promotion memoranda for captain and major; and a extract from Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-15.


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 was awarded a Bachelor of Science Degree from the College of Saint Benedict on 27 May 1990.

3.  The applicant's military records show that he was appointed in the U.S. Army Reserve, Quartermaster Corps as a second lieutenant effective 27 May 1990.  He completed his branch officer basic course effective 14 December 1990.  He was promoted to first lieutenant effective 31 May 1994.

4.  Based on the maximum of 7 combined years of service as a first and second lieutenant, his maximum years in grade (MYIG) for promotion to captain was 26 May 1997.

5.  The applicant submitted a copy of his orders showing he was reassigned from a troop program unit to the IRR effective 14 November 1997.

6.  The applicant was considered and not selected for promotion to captain by the 1997 Reserve Components Selection Board (RCSB) that convened on 13 November and recessed on 12 December 1997.  The board results were approved on 25 June 1998.

7.  The applicant was issued a Notification of Promotion Status memorandum, dated 30 July 1998, wherein he was advised of his non-selection for promotion to captain by the 1997 RCSB because his records did not indicate he had completed the required civilian and/or military education by the date the board convened.

8.  On 25 July 2000, the Office of Promotions, Reserve Components, Human Resources Command (HRC), St. Louis, Missouri, issued a promotion memorandum advising the applicant of his selection for promotion to captain by a special selection board (SSB) under the 1997-year criteria with a promotion effective date and date of rank for captain of 25 June 1998, the approval date of the 1997 RCSB.

10.  The 2003 Major RCSB convened on 3 March 2003 and recessed on 4 April 2003.  The board results were approved on 17 July 2003.  There is no evidence the applicant was considered by this board.

11.  The applicant was considered and selected for promotion to major by the 2004 RCSB that convened on 2 March 2004 and recessed on 19 March 2004.  The board results were approved on 2 June 2004.

12.  Based on the maximum of 7 years in the grade of captain and the applicant's date of rank for captain of 25 June 1998, his MYIG for promotion to major was 24 June 2005.

13.  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 would serve a MYIG of 2 before promotion to first lieutenant, and a first lieutenant would serve a MYIG of 5 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.

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

15.  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, the 1996 promotion board should have been convened earlier and been approved approximately 75 days after its respective recess date.  Based on the normal processing, the 1996 RCSB which convened on 12 November 1996 and recessed 26 November 1996 should have been approved on 1 February 1997.

16.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that officers selected by an SSB are eligible for the same promotion effective date and date of rank that they would have received by the original board in which the error occurred.

17.  Army Regulation 135-155 also specifies that officers assigned to a unit must be serving in a position requiring the higher grade or be assigned to the IRR or as an IMA officer on or before promotion to the next higher grade.  In addition, IRR and IMA officers selected by a mandatory promotion board must have completed the MYIG.  Officers not promoted and who transfer after their promotion eligibility date are promoted effective on the day after transfer to a non-unit status.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that Office of Promotions, HRC, St. Louis, determined that the applicant's records contained a material error when he was considered and not selected for promotion to captain by the 1997 RCSB.  He was considered and selected for promotion to captain by an SSB under the 1997-year criteria.  He was promoted to captain with a promotion effective date and date of rank of 25 June 1998, the approval date of the 1997 RCSB.

2.  Under the provisions of ROPMA, the applicant was eligible for promotion consideration to captain by the 1996 RCSB.  Based on the delays for promotion board proceedings preparation and processing for Presidential approval, the 1996 RCSB should have been approved on 1 February 1997.  The evidence also shows the applicant was reassigned to the IRR effective 14 November 1997; therefore, the earliest date he would have been promoted would be the day after his transfer.

3.  Based on the foregoing, the applicant is entitled to adjustment to his promotion effective date and date of rank for captain to 15 November 1997, the day after his transfer to the IRR, with entitlement to back pay and allowances from 15 November 1997 to 25 June 1998, the original date of his promotion to captain.

4.  The applicant is not entitled to adjustment of his date of rank for major from 2 June 2004 to 17 July 2003, the approval date of the 2003 RCSB, as there is no evidence he was considered and selected for promotion by this board.

5.  Based on an adjustment to his date of rank for captain to 15 November 1997 and completion of the MYIG, the earliest date he would have been eligible for promotion to major was 14 November 2004.  He was considered and selected for promotion to major by the 2004 RCSB which convened and was approved prior to his MYIG date.  In retrospect, he received an early promotion to major with an effective date and date of rank of 2 June 2004, since he was promoted prior to 14 November 2004.

6.  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 the applicant was promoted to captain with an adjusted promotion effective date and date of rank of 15 November 1997 with entitlement to pay and allowances from that date to 25 June 1998.

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 adjustment to his promotion effective date and date of rank for major from 2 June 2004 to 17 July 2003.



      ___________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)                                         AR20090009463



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009463



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1