PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:   16 September 1999
	DOCKET NUMBER:   AR1998012738

	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. Stephanie Thompkins.		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman		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 his date of rank to lieutenant colonel be adjusted to 1 February 1996.

3.  He states that under the Reserve Officer Personnel Management Act (ROPMA) his promotion date should be no more than 7 years from 1 February 1989, his date of rank for major.

4.  The applicant’s military records show that he was appointed in the Regular Army as a second lieutenant effective 2 June 1976.  He attained the rank of captain effective 1 August 1980.  He was appointed in The Judge Advocate General’s Corps effective 12 September 1983.  He was promoted to major effective 1 February 1989.

5.  On 1 October 1990 his request for an unqualified resignation with appointment in the US Army Reserve was approved.  He was appointed in the Reserve in the rank of major effective 2 October 1990.  His promotion eligibility date (PED) for promotion to lieutenant colonel was 31 January 1996, based upon completion of 7 years in the lower grade and 17 years of commissioned (promotion) service.

6.  He was erroneously not considered for promotion by the 1995 Reserve Components Selection Board (RCSB), which convened from 3 to 27 October 1995.

7.  He was considered and selected for promotion to lieutenant colonel by the 1996 RCSB.  His date of rank was 25 April 1997, the date of the promotion announcement letter.

8.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  It provides that promotion consideration will be given prior to their PED's so that, if selected, they may be promoted on their future PED.

9.  The Chief, Office of Promotions, Promotion and Notifications Branch, Total Army Personnel Command (PERSCOM) has expressed the opinion that under the provisions of ROPMA, the date of rank is the date the promotion letter was issued; however, the applicant was eligible for promotion on 31 January 1996.  He recommended that favorable action be taken.

10.  An Office of the Judge Advocate General (OTJAG) legal opinion has been issued that states if officers are promoted after the date they met maximum time in grade and have not been previously nonselected, they may petition the Army Board for Correction of Military Records for an adjustment in their date of rank.

CONCLUSIONS:

1.  The applicant is entitled to correction of his date of rank to lieutenant colonel to 31 January 1996.  That was his promotion eligibility date and he was not previously non-selected.  He should have been considered by the 1995 RCSB, and if selected he may have been promoted to lieutenant colonel effective 
31 January 1996, not 25 April 1997.

2.  The Correction Board concludes in this case, that since the applicant was selected by the 1996 RSCB, he would have also been selected by the 1995 RCSB.

3.  The Correction Board also concludes that notwithstanding ROPMA, the applicant’s records should be corrected to show he was considered and selected for promotion to lieutenant colonel by the 1995 RCSB, and that he was promoted to that rank with a date of rank and effective date of 31 January 1996.

4.  The foregoing is supported by the opinion from the Promotions Branch, PERCSOM and OTJAG.

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the individual concerned was considered and selected for promotion to lieutenant colonel by the 1995 RCSB, and that he was promoted to lieutenant colonel effective 31 January 1996, with a date of rank of the same date.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	16 September 1999	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.