BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004286 


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 correction of his military records to show:

   a.  he was considered for promotion to captain, pay grade O-3, under the 1998 promotion criteria.  If selected, he requests further consideration for promotion to major, pay grade O-4 and to lieutenant colonel, pay grade O-5 by the appropriate promotion selection boards; and
   
   b.  he further requests all pay and allowances due as a result of an earlier promotion date to either captain or major.

2.  The applicant states, in effect, the Reserve Officer Personnel Management Act (ROPMA) changed the time-in-grade requirement for promotion to captain.  Accordingly, he contends that his dates of rank and effective dates for promotion should be adjusted as follows:

	a.  captain from 1 April 1999 to 25 June 1998; and

	b.  major from 8 June 2005 to a date in 2004.

3.  The applicant provides copies of his Bachelor of Arts Diploma, dated 9 May 1992; DA Form 1059 (Service School Academic Evaluation Report), dated 
15 September 1992; U.S. Army Diploma for completion of the Military Police Officer Basic Course, dated 15 September 1992; and a promotion memorandum, dated 4 May 1999, announcing promotion to captain.

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.  At the time of his application, the applicant was serving on active duty as a major, U.S. Army Reserve (USAR), in the Active Guard Reserve (AGR) Program.

3.  The applicant's available records contain:

	a.  DA Form 71 (Oath of Office - Military Personnel) showing he completed his oath on 11 May 1991 as a USAR officer.

	b.  Orders C-08-124067, USAR Personnel Center, dated 19 August 1991, assigning him to the 4003 USAR Garrison Support Unit (GSR) located in Oklahoma City, Oklahoma.

	c.  Memorandum, dated 15 April 1994, promoting him to first lieutenant with an effective date and date of rank of 31 May 1994.

	d.  Memorandum, dated 4 May 1999, promoting him to captain with an effective date and date of rank of 1 April 1999.

	e.  Orders 181-302, U.S. Army 90th Regional Support Command, dated 
30 June 1999, relieving him from the 4003 GSR and assigning him to the USAR Control Group (AGR) with duty at the Army Reserve Personnel Center, then located in St. Louis, Missouri.

	f.  Orders B-06-503325, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, dated 28 June 2005, promoting him to major with an effective date and date of rank of 8 June 2005.

4.  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 Army Board for Correction of Military Records (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 MYIG (maximum years in grade) as a lieutenant.

5.  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 was 1 May 1998.   In the USAR it was 24 August 1998.

6.  He was considered and selected for promotion to captain by the 1999 Reserve Components Selection Board (RCSB), which convened on 9 November and recessed on 11 December 1998.  The board results were approved on 
1 April 1999.

7.  He was promoted to captain with an effective date and date of rank of 1 April 1999, based on his selection by the 1999 RCSB.

8.  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 date of rank.

9.  The ROPMA prescribed the policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers.

	a.  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.

	b.  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. 


	c.  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).

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions/Special Actions, HRC, Fort Knox, Kentucky.  The opinion stated that the applicant's request to amend his date of rank and grant him promotion consideration by a Special Selection Board (SSB) should be disapproved.

	a.  The opinion cites Department of Defense Instruction (DODI) 1320.11 (SSB), paragraph 4.2 as the basis for recommending denial.

	b.  Paragraph 4.2 states, in effect, that an SSB shall not consider any person who may, by maintaining reasonably careful records, have discovered and taken steps to correct an error or omission on which the original board based its decision against promotion.

11.  On 20 June 2011, a copy of the advisory opinion was sent to the applicant for his information and an opportunity to respond.  On 19 July 2011, the applicant replied that he had nothing else to add to his case.

12.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.

	a.  This regulation specifies that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the records at the time of consideration.

	b.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

	c  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that under ROPMA he should have been considered for promotion to captain in 1998 vice 1999, based on the changes implemented.  He argues that such a selection would have promoted him to captain on 25 June 1998 and he would have been afforded consideration for promotion to major in 2004 and to lieutenant colonel in 2010.  He further requests pay and allowances due as a result of any earlier promotion dates.
  
2.  The applicant’s contentions that his date of promotion to captain should be 
25 June 1998 was carefully considered and found not to have merit.  

3.  The advisory opinion contends that the applicant should not be afforded consideration by an SSB because he should have taken steps to correct an error or omission on which the original board based its decision against promotion.  There is also no evidence the applicant applied to the ABCMR concerning adjustment to his date of rank for captain based on a change to the Army Reserve time in grade promotion policy in early 1997.  He simply did not exercise due diligence in resolving the matter when he was eligible.  There is no evidence he exercised reasonable diligence to correct this error in a timely manner.

4.  There is also no available evidence and he provided none to show he was assigned to an authorized 03 position on or before 25 June 1998 and met all promotion requirements at that time.

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)                                         AR20110004286



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ABCMR Record of Proceedings (cont)                                         AR20110004286



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