PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           31 August 2000                   
	DOCKET NUMBER:   AR2000037285

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Joe R. Schroeder		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 major be adjusted to 19 May 1999.

3.  The applicant states that he met the maximum time in grade for promotion to the next higher grade (major) on 19 May 1999 and he was assigned to a valid major position on that date.

4.  The applicant’s military records show that after having had prior enlisted service, he was appointed a second lieutenant in the U. S. Army Reserve (USAR) on 7 June 1985.  He was promoted to captain on 20 May 1992.  He was ordered to active duty in an Active Guard/Reserve (AGR) status in June 1998.  He was assigned to a major position effective 17 August 1998.

5.  On 14 January 2000, the applicant was notified that he had been selected for promotion to major effective 3 January 2000.  

6.  In the processing of this case, an advisory opinion was obtained from the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office recommended approval of the applicant’s request, noting that he had been given the date of rank of 3 January 2000, the date the President approved the promotion board; however, he was in a valid major’s position on his promotion eligibility date of 19 May 1999.

7.  A copy of the advisory opinion was provided to the applicant for comment.  He did not respond within the given time frame.

8.  Title 10, U. S. code, section 14304 states 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 for promotion to the grade of major is 7 years.

9.  Title 10, U. S. code, section 14308(c)(2) states that 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.

CONCLUSIONS:

1.  The provisions of law state that an officer cannot be promoted earlier than the date the President approved the results of the selection board.  In the applicant’s case, this is 3 January 2000.

2.  However, the provisions of law 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 the applicant’s case is 7 years.  The applicant completed 7 years as a captain on      19 May 1999.

3.  Notwithstanding the provisions of law that limit the effective date of promotion based on the date the President signs the promotion list, fairness requires that the officer’s records be corrected to show his date of rank to be the date he completed the maximum years of service, i. e., 19 May 1999.  The Board concludes that there is no unfairness in not correcting the effective date of his promotion as all other officers selected for promotion by that board will also have the same effective 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 an Active Guard/Reserve status effective     3 January 2000 with a date of rank of 19 May 1999.

BOARD VOTE:  

__sac___  __bje___  __jrs___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Samuel A. Crumpler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037285	
SUFFIX		
RECON		
DATE BOARDED	20000831	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.