IN THE CASE OF:	  

		BOARD DATE:	    13 May 2010

		DOCKET NUMBER:  AR20090010328 


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 his date of rank (DOR) to major (MAJ) be changed to 23 June 2004.

2.  The applicant states that based on a delay in his promotion to MAJ, he suffers a 2-year misalignment with his Officer Candidate School graduating class of 1990.  He requests this correction so that he will be realigned with his peers.  He states Reserve Officer Personnel Management Act (ROPMA) policies and procedures specify a second lieutenant (2LT) will serve 2 maximum years in grade (MYIG) before promotion to first lieutenant (1LT) and a 1LT will serve 5 MYIG before promotion to captain (CPT).  He claims he served as a 1LT for 9 years.

3.  The applicant provides promotion orders and special selection board (SSB) correspondence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows after serving in an enlisted status from 27 November 1984 through 22 June 1990, he was appointed as a Reserve commissioned officer in the grade of 2LT and entered the Army National Guard (ARNG) on 23 June 1990.  He was promoted to 1LT on 23 June 1993, which established his promotion eligibility date (PED) to CPT as 21 June 1998.

2.  On 30 July 1998, a Total Army Personnel Command (TAPC), St. Louis, Missouri, memorandum informed the applicant he was considered and not selected for promotion to CPT by the 1997 CPT Reserve Components Selection Board (RCSB).  The applicant was also advised the reason for his non-selection was that he did not meet the civilian education requirement prior to the convening date of the board.

3.  On 4 May 1999, a TAPC-St. Louis memorandum notified the applicant of his second non-selection for promotion to CPT and his mandatory removal date was established as 1 November 1999.

4.  On 1 November 1999, the applicant was discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) Individual Ready Reserve in the rank of 1LT.

5.  On 4 November 1999, the applicant enlisted in the Tennessee ARNG in the rank of specialist/pay grade E-4.

6.  On 6 February 2001, a TAPC-St. Louis memorandum notified the applicant that he was selected for promotion to CPT under the 1998 CPT RCSB criteria by an SSB that adjourned on 31 March 2000.  The memorandum indicated the effective date of the applicant's promotion would be the later of the following dates:

	a.  date shown after A (1 April 1999),

	b.  date Federal recognition is extended in the higher grade, or

	c.  date following the date Federal recognition is terminated in current Reserve grade.

7.  On 12 March 2001, the applicant's 1 November 1999 separation was revoked.

8.  The applicant was promoted to and granted Federal recognition in the grade of CPT on 17 August 2001 by National Guard Bureau (NGB) Special Orders Number 224 AR, dated 17 August 2001.  These orders were amended by NGB Special Orders Number 232 AR, dated 27 August 2001, which changed his promotion to CPT and Federal recognition date to 1 September 1999.

9.  The applicant was considered and selected for promotion to MAJ by the 2006 RCSB and his promotion and Federal recognition dates were established as 26 July 2006.

10.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The NGB recommended the applicant's CPT promotion effective date and DOR be adjusted from 17 August 2001 to 1 April 1999 and that he receive all back pay and allowances due as a result.  It further recommended his MAJ DOR be adjusted to 1 April 2006 based on MYIG and that he also be provided back pay and allowances as a result of this change.  The opinion indicates the following:

	a.  The recommendation for adjustments to his promotion effective dates for CPT and MAJ are based on MYIG requirements of the ROPMA and the governing regulation.

	b.  The applicant was selected for promotion to CPT by an SSB with an eligibility date of 1 April 1999 which then supersedes the earlier promotion non-selection memorandum of 4 May 1999.

	c.  The enlistment contract entered into by the applicant on 4 November 1999 should be voided by the Tennessee ARNG.

11.  On 11 January 2010, the applicant was provided a copy of the NGB advisory opinion in order to have an opportunity to concur with, rebut, or comment on its contents.  To date, he has failed to respond.

12.  Army Regulation 135-155 (ARNG and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures for selecting and promoting commissioned officers of the ARNG and commissioned and warrant officers of the USAR.

13.  Chapter 2, section III (Board Consideration), of this regulation states boards will convene each year and will consider officers on the Reserve Active Status List for promotion to CPT through lieutenant colonel without regard to vacancies in the next higher grade.  It also states the first consideration for promotion will occur well in advance of the date the officer will complete the MYIG requirements.  Table 2-1 outlines the service requirements for promotion and indicates that the MYIG requirement for promotion to 1LT is 42 months, the MYIG for promotion to CPT is 5 years, and the MYIG for promotion to MAJ is 7 years.

14.  Title 10, U.S. Code, section 14304, provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law.  It states officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade far enough in advance of completing the MYIG so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  It also states a Reserve Component officer who is recommended for promotion to the next higher grade the first time he or she is considered for promotion and who is placed on an approved promotion list shall be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to MAJ be corrected to 23 June 2004 was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The ROPMA MYIG promotion provisions of law are applicable only to personnel the first time they are considered for promotion to the next higher grade.  In this case, the applicant was selected under the criteria of the 1998 CPT RCSB, which was his second consideration.  As a result, ROPMA MYIG provisions are not applicable.

3.  Further, the NGB recommendation to change the applicant's CPT promotion date from 17 August 2001 to 1 April 1999 appears to be based on an oversight that his promotion effective date was established as 1 September 1999, the date he was granted Federal recognition.  The 1 September 1999 promotion and Federal recognition date is within an acceptable processing timeline and must be presumed to be the date NGB officials established as the date he was eligible for promotion at the time.

4.  The record also shows the ROPMA MYIG for promotion to MAJ is 7 years.  In this case, the applicant was promoted to CPT on 1 September 1999.  This established his PED MYIG to MAJ as 31 August 2006.  He was selected for promotion to MAJ by the 2006 RCSB and was promoted on 26 July 2006 prior to reaching the MYIG PED.  As a result, he was promoted within the MYIG requirement of 7 years and there is an insufficient regulatory or legal basis to change this promotion date.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20090010328



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ABCMR Record of Proceedings (cont)                                         AR20090010328



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