PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            10 June 1999                
	DOCKET NUMBER:   AR19980024444

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Elzey J. Arledge, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that her date of rank to the grade of major be corrected from 4 September 1997 to 24 May 1997.

3.  The applicant states that the maximum time in grade for a reserve captain in order to be eligible for promotion to major is seven years, under the provisions of the Reserve Office Personnel Management Act (ROPMA).

4.  The applicant’s military records show that she is a Reserve officer who was promoted to captain on 25 May 1990, and assigned to a major’s position on        19 August 1996.  On 4 September 1997 the Total Army Personnel Command at St. Louis notified the applicant that she was promoted to major effective                4 September 1997.

5. Title 10, Section 14308(a), states:  “Promotion List.  When the report of a selection board convened … is approved by the President, the Secretary of the military department concerned shall place the names of all officers selected for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list…’’  

6.  Title 10, Section 14308(c)(2), states:  “Except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion.”

7.  Title 10, Section 14304.  Eligibility for consideration for promotion: maximum years of service in grade.  Subsection (a) states, in effect, that officers shall be placed in the promotion zone for that officer’s grade and competitive category, and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified 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.  The maximum years of service in grade for a major is 7 years.

8.  Title 10, Section 14304, subsection (b), states:  “An officer holding a permanent grade in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer 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 maximum years of service in grade specified in subsection (a).”

9.  Title 10, Section 14308, subsection (e), states:  “An officer in the Army Reserve who is on a promotion list as a result of selection for promotion by a mandatory promotion board convened under 14101(a) of this title or a board convened under section 14502 or chapter 36 of this title may be promoted at any time to fill a vacancy in a position to which the officer is assigned.”

10.  In the processing of this case an advisory opinion was received from the Total Army Personnel Command.  That opinion stated, in effect, that the applicant could not be promoted on 24 May 1997, because the President did not approve the results of the selection board until 22 July 1997, and it was not released to the public until 4 September 1997.  The applicant was provided a copy of this opinion for her response and possible rebuttal.  Her response is attached.  

CONCLUSIONS:

1.  The provisions of law under ROPMA, as indicated by the advisory opinion from the Total Army Personnel Command in St. Louis, state in effect, that an officer cannot be promoted earlier than the issuance of the promotion order.   

2.  The provisions contained in ROPMA also state that an officer will be considered for promotion well in advance, so that if recommended, he/she would be promoted on or before the date that he/she completes the maximum years of service, which in this instance, is 7 years.  The officer completed 7 years of service as a major on 24 May 1997.

3.  Notwithstanding the information contained in the advisory opinion, In the interest of justice and fairness the officer’s records should be changed to reflect the effective date of her promotion to major as 24 May 1997.  She should also receive all due pay and allowances in the grade of major, 0-4, from that date.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant was promoted to major as a Reserve commissioned officer of the Army in Active Guard/Reserve status effective 24 May 1997, that her 

time in grade be computed from that date, and that she receive all pay and allowances due from that date.

BOARD VOTE:

__sac____  __slp___  ___eja__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998002444	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990610	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 131.05		
2.		
3.		
4.		
5.		
6.