BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100010656 


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 an adjustment of her date of rank (DOR) for captain from 14 November 2001 to November 2000.  

2.  The applicant states, in effect, her DOR should be adjusted to a date that reflects a maximum of 7 combined years of service as a lieutenant.  

3.  The applicant provides copies of her ARPC Form 155-R (Promotion Qualification Statement), appointment memorandum, promotion memoranda for first lieutenant and captain, and her DA Form 1059 (Service School Academic Evaluation Report).  

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 she was appointed in the U.S. Army Reserve, Army Nurse Corps, as a second lieutenant on 24 March 1995 with an adjusted DOR of 29 October 1994, based on 4 months and 25 days of constructive service credit.  She was promoted to first lieutenant effective 28 October 1996.

3.  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 action 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 years combined maximum time in grade (MTIG) as a lieutenant.

4.  Based on the maximum of 7 combined years of service as a lieutenant, her MTIG for promotion to captain was 27 October 2001.

5.  She was considered and selected for promotion to captain by the 2001 Army Medical Department (AMEDD) Reserve Components Selection Board (RCSB) which convened on 26 March and recessed on 20 April 2001.  The President approved the board results on 25 July 2001.  

6.  Her ARPC Form 155-R verifies she was assigned to a captain's position effective 1 May 1997 and her records show she met the requirements, i.e., active status, medical qualification, and security clearance for promotion purposes on this date.

7.  She was promoted to captain effective 14 November 2001.

8.  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 MTIG of 2 years before promotion to first lieutenant, and a first lieutenant serve a MTIG 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.

9.  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).  Promotion cannot be effective prior to approval of the respective board by the President.

10.  The ROPMA promotion boards for captains were administratively delayed.  Presidential approval 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 100 days after the respective recess dates.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case the applicant is entitled to an adjustment of her promotion effective date and DOR for captain to 25 July 2001, the final board approval date.   

2.  Her contention that her date of rank for captain should be adjusted to November 2000 was considered.  However, the evidence shows she was timely considered for promotion by the 2001 AMEDD RCSB prior to her MTIG.  Therefore, 25 July 2001 is the earliest date she is entitled to promotion to captain under ROPMA.  

3.  Although she was selected for promotion to captain the first time she was considered after the enactment of ROPMA the untimely promotion consideration and delay of her promotion created an injustice that should now be corrected.

4.  She was otherwise qualified for promotion to captain and met all other prerequisites for promotion on 25 July 2001.

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 she was promoted to captain with an adjusted promotion effective date and DOR of 25 July 2001, with entitlement to the pay and allowances in the higher grade on that date. 

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 an adjustment to her promotion effective date and DOR for captain to November 2000.  



      _______ _   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)                                         AR20100010656



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ABCMR Record of Proceedings (cont)                                         AR20100010656



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