PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            14 April 1999                  
	DOCKET NUMBER:   AR1999023094

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		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 the effective date of his promotion to lieutenant colonel be corrected from 29 May 1998 to 13 March 1998. 

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

4.  The applicant’s military records show that he is a Reserve officer who was promoted to major on 14 March 1991.  On 18 June 1998 the Total Army Personnel Command at St. Louis notified the applicant that he was promoted to lieutenant colonel effective       29 May 1998.    

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.  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.  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 13 March 1998, because the President did not approve the results of the selection board until 29 May 1998.  The applicant was provided a copy of this opinion for his response and possible rebuttal.  He has not responded.
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 date the President approved the results of the selection board.       

2.  The provisions contained in ROPMA also state that an officer will be considered for promotion well in advance, so that if recommended, he would be promoted on or before the date that he completes the maximum years of service, which in this instance, is        7 years.  The officer completed 7 years of service as a major on 13 March 1998.

3.  Notwithstanding the information contained in the advisory opinion, fairness      requires that the officer’s records be changed to reflect the effective date of his promotion to lieutenant colonel be 13 March 1998.  He should also receive all due pay and allowances in the grade of lieutenant colonel, 0-5, 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 lieutenant colonel as a Reserve commissioned officer of the Army in Active Guard/Reserve status effective                    13 March 1998, that his time in grade be computed from that date, and that he receive all pay and allowances due from that date.

BOARD VOTE:  

___klf___  __aao___  ___tbr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023094	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990414	
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. 131.00		
2. 128.00		
3.		
4.		
5.		
6.