MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 August 1999              
	DOCKET NUMBER:   AR1998013084

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

	Mr. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, adjustment of the effective date, with entitlement to pay, of his promotion to the rank of colonel, (pay grade 06), 
Judge Advocate Corps (JAGC), United States Army Reserve (USAR) from 
26 June l997 to 16 August l996.

APPLICANT STATES:  In essence, that he was serving in vacant “06” position at the time the promotion board adjourned on 16 August l996.  Therefore, he should have been promoted to the rank of colonel, USAR, on that date.  He submits copies of various orders which assigned him to the vacant duty position, his reassignment from that position on 1 September l996, and his subsequent promotion to the rank of colonel effective 26 June l997.   

EVIDENCE OF RECORD:  The applicant's military records show:

He was serving in the rank of lieutenant colonel (LTC), JAGC, USAR, with a date of rank of 1 April l990.  On 1 December l995, orders were issued reassigning him to the 102nd USAR Command, essentially to fill a vacant colonel’s position, as the command’s Staff Judge Advocate (SJA).  He claims to have held this position from 1 January l995 on a temporary basis.

On 5 August l996, orders were issued reassigning him from the 102nd USAR Command, to Team 1 of the 8th Legal Support Organization, to be effective 
1 September l996.  Supposedly, the 102nd USAR Command was being deactivated.  Since he was a LTC, he was assigned to a LTC’s position.  

On 16 August l996, the l996, O6, Army Promotion List (APL), USAR Promotion Selection Board adjourned.  The results of the selection board were announced on either l6 September or 24 October l996 (date unclear).  The applicant had been selected for promotion to the rank of colonel.

The board results were not approved by the President until 7 October l996, which was after the effective date that the Reserve Officer Personnel Management Act (ROPMA) became effective on 1 October l996.  Therefore, the determination was made by the Department of the Army that this particular list, as well as several other USAR promotion lists being processed at that time, would be considered and processed under the ROPMA promotion criteria, rather than processed under the pre-ROPMA promotion criteria.  

On 6 March l997, the United States Senate approved the USAR promotion list for USAR “06” officers selected by the USAR promotion selection board which adjourned on 16 August l996.

On 23 March l997, he was notified that he would not be promoted to the rank of colonel because he was not assigned to an 06 position.

On the 27 June l997, orders were issued by the Army Reserve Command, announcing his promotion to the rank of colonel, JAGC, USAR effective that date.  This date was the date from which all pay and allowances were computed. Further, the order announced that his date of rank for promotion purposes was 16 August l996.  This promotion authority was based on paragraph 2-27d, Army Regulation 140-10, which authorizes officers in the rank of colonel, JAGC, to serve in lower graded positions upon approval of the TJAG. 

However, in connection with a review of this application, the Army Reserve Personnel Command (AR-PERSCOM) determined that the adjusted date of rank was in error.  Therefore, a new promotion memorandum was issued, which essentially adjusted his l6 August l996 date of rank to 27 June l997.  This was based on the determination that the 1996 O6, USAR promotion selection boards were ROPMA boards.  

Information concerning the applicant’s request is contained in the opinion (COPY ATTACHED) from the AR-PERSCOM,  which is incorporated herein.  Essentially, the opinion stated that since the applicant’s promotion selection board was a ROPMA selection board, he was not eligible for promotion before the list had been approved by the President (Title 10, United States Code, Section 14308 and confirmed by the United States Senate for USAR colonel’s, as required by Title 10, United States Code, Section 12203(a), for USAR colonel’s.  Favorable action on his request was not recommended.  

Further, the opinion goes on to note that the Office of the Office of the Judge Advocate General (OTJAG) opined to the Assistant Secretary of the Army on 
22 April l997, that officers selected under ROPMA criteria could not be promoted earlier than the date the promotion selection list is approved.  Further, ROPMA had removed the prior authority to adjust a USAR officers effective date of promotion and/or their dates of rank.  The date of rank cannot be any earlier than the effective date of promotion.  Accordingly, as indicated above, the 
AR-PERSCOM voided the earlier announcement of his date of rank as 16 August l996.

The advisory opinion was provided to the applicant for his review and comment/rebuttal if he so desired.  He failed to respond to this request.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.
2.  The Board notes that the applicant’s USAR promotion selection board, while adjourning before 1 October l996, was determined by the Department of the Army to be a ROPMA promotion selection board, and the ROPMA rules of law would apply.

3.  Therefore, the applicant could not be promoted to the rank of colonel before 
6 March l997, the date the United States Senate confirmed the results of the 
l996 O6, USAR promotion selection boards.  

4.  Further, he was not promoted to the rank of colonel until the United States Reserve Command issued the promotion memorandum dated 27 June l997.  Therefore, this established his effective date of promotion to that rank, and subsequently it was determined that this was also his date of rank.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__SLP___  __SC___  __BE____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013084	
SUFFIX		
RECON		
DATE BOARDED	19990826	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	131.04	
2.	131.05	
3.		
4.		
5.		
6.