IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100022794 


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, an adjustment of his promotion effective date and date of rank (DOR) for first lieutenant (1LT) in accordance with the Reserve Officer Personnel Management Act (ROPMA).

2.  He states, in effect, he was commissioned on 16 August 1991; therefore, he should have been promoted to 1LT on 15 August 1993.  He spent 3 years as a second lieutenant (2LT) and ROPMA guidelines have reduced the requirement to 
2 years.

3.  He provides:

* Bachelor of Arts diploma
* Officer Record Brief
* Two DA Forms 1059 (Service School Academic Evaluation Report)
* Memorandum, subject: Notification of Opportunity to Apply for Adjustment of DOR, dated 15 November 2000, and attachments

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 he was appointed in the U.S. Army Reserve as a 2LT effective 16 August 1991.  He completed the Infantry Officer Basic Course effective 2 December 1991.

3.  Based on the required 3 years time in grade, his maximum time in grade (MTIG) for promotion to 1LT was 15 August 1994.

4.  He was promoted to 1LT effective 15 August 1994.  

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 (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 DOR’s for those who were first-time considered and selected for promotion to CPT, after having served more than 7 years combined MTIG as a lieutenant.

6.  Based on the required 4 years time in grade, prior to the implementation of ROPMA, his MTIG for promotion to CPT was 14 August 1998.

7.  Based on the maximum of 7 combined years of service as a 1LT and 2LT, his MTIG for promotion to CPT was 14 August 1998.  

8.  His records show he was assigned to a CPT's position (company commander) effective 10 October 1999.

9.  He was considered and selected for promotion to CPT by the 1999 Reserve Components Selection Board (RCSB), which convened on 9 November and recessed on 10 December 1999.  The President approved the board results on 18 April 2000.  Based on his MTIG he should have been considered by the 1997 RCSB (13 November to 12 December 1997) that the President approved on 25 June 1998.  

10.  He was promoted to CPT effective 18 April 2000.  

11.  He was ordered to active duty and entered active duty on 15 October 2000.  His DOR for CPT was adjusted to 15 October 2000.  He was honorably released from active duty on 1 September 2004 and transferred to a Reserve unit.  

12.  He was promoted to major effective 7 June 2006.

13.  In an advisory opinion, dated 24 March 2011, the Chief, Officer Promotions Special Actions Branch, Human Resources Command, stated the applicant's request cannot be approved.  A review of his file confirms he was promoted to 1LT at the normal time of progression, well before the implementation of ROPMA.  However, the recommendation was that the applicant should submit a ROPMA Phase Blue packet (which they enclosed) to apply for consideration for an earlier CPT board (unless proven otherwise ineligible) due to the change of time in grade requirements from 1LT to CPT as opposed to that of 2LT to 1LT.  

14.  On 25 March 2011, the advisory opinion was provided to the applicant for acknowledgement and/or rebuttal.  He did not respond.

15.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officer), then in effect, prescribed the policies and procedures for promotion of Reserve officers.  The regulation stated Reserve officers appointed prior to 1 October 1996 in the grade of 2LT would be considered for promotion after serving 3 years (36 months) time in grade without review by a selection board.  The regulation also shows that 2 years of time in grade was required on or after 1 October 1996.  Officers in the grade of 1LT would be considered for promotion to CPT after service 4 years time grade.  

16.  ROPMA, a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve component officers.  The law was implemented on 1 October 1996.  ROPMA provides that a 2LT serve a MYIG of 2 years before promotion to 1LT, and a 1LT serve a MYIG of 5 years before promotion to CPT and that an officer selected for the first time for promotion to CPT may be promoted on or before the date that he/she completes the MYIG.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve.  Promotion cannot be effective prior to approval of respective boards by the President. 

17.  Promotion boards for CPT were administratively delayed during 1996 through 1999.  The Presidential approvals of the results of the pertinent promotion boards were also administratively delayed.  Based on the normal processing, they should have been convened earlier and approved approximately 100 days after the respective board recess dates.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to an adjustment of his promotion effective date and DOR for 1LT from 15 August 1994 to 15 August 1993.  His promotion effective date and DOR for 1LT are proper and he has not shown otherwise.

2.  He was appointed as a 2LT effective 16 August 1991 and promoted to 1LT effective 15 August 1994 prior to the implementation of ROPMA, which became effective 1 October 1996.  Promotion to 1LT prior to ROPMA required completion of 3 years time in grade as a 2LT.  

3.  Under ROPMA an officer appointed as a 2LT on or after 1 October 1996 would be eligible for promotion to 1LT upon completion of 2 years time in grade.  Officers appointed prior to that date were not grandfathered under the guidelines of ROPMA for entitlement to promotion to 1LT within 2 years.

4.  He was considered and selected for promotion to CPT by the 1999 RCSB.  He was promoted effective 18 April 2000, the approval date of the 1999 RCSB.  Based on the MTIG, he should have been considered by the 1997 RCSB which was approved on 25 June 1998.  However, the available evidence shows he was not assigned to a CPT's position until 10 October 1999.  

5.  Although he was selected for promotion to CPT the first time he was considered after the enactment of ROPMA, his untimely promotion consideration and delay of the promotion created an injustice that should now be corrected.  Therefore, he is entitled to an adjustment of his promotion effective date and DOR for CPT to 10 October 1999, the date of his assignment to a CPT's position. 

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 he was promoted to CPT with an adjusted promotion effective date and DOR of 10 October 1999, 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 of his promotion effective date and DOR for 1LT from 15 August 1994 to 15 August 1993.



      _______ _   _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)                                         AR20100022794



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ABCMR Record of Proceedings (cont)                                         AR20100022794



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