IN THE CASE OF:	

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090019704 


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, reconsideration of his request for an adjustment to his date of rank (DOR) for captain.

2.  The applicant states, in effect, that his DOR for captain should be adjusted.  He also states that after being informed by a fellow Active Guard Reserve officer that his DOR was incorrect due to issues with the Reserve Officer Personnel Management Act (ROPMA) he inquired further.  He found that the ROPMA provisions enacted on 1 October 1996 were never intended to change the statutory requirement then in effect, requiring an officer to serve 7 years, combined, in the ranks of second lieutenant and first lieutenant before being promoted to captain.  Due to this mistake he served as a lieutenant from 20 May 1990 through 8 January 1999 which is almost a total of 2 years past the 7-year requirement.  He states that his career manager advised him to apply to this Board for correction of his military record.

3.  In support of his application, the applicant provides copies of his college diploma; his oath of office; his first lieutenant, captain, and major promotion memoranda; his 1990 and 1991 reassignment orders; electronic mail correspondence between himself and his career manager; and an Army Board for Correction of Military Records (ABCMR) Record of Proceedings based on the same DOR issue. 




CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2002075150 on 19 November 2002.

2.  The documents that the applicant provided and the contentions that he made are considered new evidence that requires reconsideration.  

3.  The applicant's military records show he was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, effective 20 May 1990.  The applicant was reassigned a troop program unit (TPU) effective 11 February 1991.  He was promoted to first lieutenant effective 30 May 1993.

4.  The applicant was considered and selected for promotion to captain by the 1996 Reserve Components Selection Board (RCSB) that convened on 12 November and recessed on 26 November 1996.  

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 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 DOR’s for those who were first-time considered and selected for promotion to captain, after having served more than 7 combined maximum years in grade (MYIG) as a lieutenant.  Application to the ABCMR did not guarantee the individual would receive an adjusted DOR, or that if the individual received an adjusted DOR, it would be the date they requested.

6.  Based on the maximum of 7 combined years of service as a first and second lieutenant, his maximum time in grade date for promotion to captain in the USAR was 19 May 1997.

7.  The President approved the 1996 RCSB results on 12 June 1998.

8.  On 1 February 1999, the applicant was issued a promotion memorandum indicating that he was promoted to captain effective 9 January 1999.

9.  On 7 March 2002, the applicant applied to the ABCMR for an adjustment of his DOR to captain under the ROPMA Project.  On 25 September 2002, the Board advised the applicant that the U.S. Army Reserve Command (USARC) Form 56-R (Promotion Qualification Statement) that he submitted with his application did not indicate he was assigned to a captain’s position and that it needed to be completed by his immediate commander.
10.  The applicant submitted a USARC Form 56-R, dated 13 January 1999, showing his assignment to a TPU captain’s position 9 January 1999.

11.  On 19 November 2002, the Board advised the applicant that the records indicated he was a member of a TPU and his DOR and effective date for promotion to captain had been correctly established as 9 January 1999, the date he was assigned to a captain’s position.  

12.  The applicant was promoted to major effective 8 June 2005.

13.  The ROPMA prescribed the policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers.  The law was implemented on 1 October 1996.  ROPMA provides 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 and that an officer selected for the first time for promotion to captain may be promoted on or before the date that he/she completes the MYIG.  ROPMA further specifies that a TPU officer must be serving in a position requiring the higher grade or accept assignment to the Individual Ready Reserve.  Promotion cannot be effective prior to approval of respective boards by the President. 

14.  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.

15.  The 1996 through 2001 promotion boards for captains were administratively delayed.  Presidential approval of the results of the pertinent promotion boards was also administratively delayed.  Based on normal processing, they should have been convened earlier and approved approximately 100 days after the respective recess dates.  All officers affected by the transitional years were invited to apply for adjustments to their DOR.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment his DOR for captain.

2.  The applicant's contentions have been considered and found not to have merit.  The evidence shows the applicant was appointed as a second lieutenant effective 20 May 1990 and promoted to first lieutenant effective 30 May 1993.  He was selected for promotion to captain by the 1999 RCSB.  Based on the required completion of a combined 7 years in the rank of lieutenant, he was eligible for promotion to captain on 19 May 1997.  However, he was not assigned to a TPU captain’s position until 9 January 1999 and was promoted accordingly with the same DOR and effective date.  He was promoted to captain on the earliest date he was eligible and in a timely manner.  He has not shown otherwise.

3.  The evidence also shows that in March 2002 the applicant applied for an adjustment of his DOR under the ROPMA Project.  The documentation that he submitted is not sufficient to adjustment his DOR for captain, his DOR was correctly established as the date he was assigned to a captain’s position and he was so advised.  It is noted that application to apply under the ROPMA Project did not guarantee an adjustment of the officer's DOR.  

4.  The applicant submitted no evidence previously or with his current request, and there is no evidence of record, to show he was assigned to a captain’s position prior to 9 January 1999.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

_____x__  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 to amend the decision of the ABCMR set forth in Docket Number AR2002075150, dated 19 November 2002.




      _______ _   _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)                                         AR20090019704



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ABCMR Record of Proceedings (cont)                                         AR20090019704


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