MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            2 November 2000
	DOCKET NUMBER:   AR2000038105

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. William D. Barr		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, that his date of rank (DOR) to Lieutenant Colonel (LTC) be changed to 24 February 1999. 

APPLICANT STATES:  In effect, that his DOR to LTC will become a critical factor in his being competitive with his peers for selection to Colonel (COL).  The new zones of consideration, announced by the Office of the Chief of the Army Reserve (OCAR), establish a cutoff date of 1 March of each year for inclusion in the zone of consideration for promotion to COL.  Therefore, his DOR being established as 24 February 1999, which was the date the President signed the promotion list, is critical to his being considered for promotion to COL with officers who were in the same year group as he when they competed for promotion to LTC.  

He indicates that he was selected for promotion to LTC by a mandatory selection board, which convened in September 1998.  The results of this board were signed by the President on 24 February 1999.  After the board results were signed by the President, some officers on the list were promoted immediately, with a DOR of 24 February 1999, while other officers with greater seniority were not promoted until much later.  He contends he should have been promoted with the officers who were promoted the date the list was signed.  

He claims that this situation was the result of new promotion rules being established under the Reserve Officer Personnel Management Act (ROPMA).  These rules authorized the Army Reserve Personnel Command (ARPERSCOM) to immediately promote officers who occupy a vacancy in a position in the higher grade when they are selected for promotion to that higher grade by a mandatory selection board.  However, he states ARPERSCOM only applied this rule to some officers in certain categories, and did not extend it to everyone who may have been eligible under the ROPMA.  He concludes by stating that at the time the President signed the LTC promotion list, 24 February 1999, he was assigned to a valid LTC position, which should have authorized him to be promoted on that date.  

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

On 28 February 1991 he was appointed a Captain (CPT) of the Judge Advocate General (JAG) Corps of the United States Army Reserve (USAR).  He was promoted to the rank of Major (MAJ) on 28 June 1992 and to LTC on 27 June 1999.  He is still actively serving in the USAR in an Individual Mobilization Augmentee (IMA) status.  

On 15 August 1995, the applicant was assigned to a LTC position, as the Command Staff Judge Advocate (SJA), in the 6325th Public Affairs Detachment, 
Los Angeles, California, which is an IMA detachment.

The applicant was selected for promotion to LTC by a Reserve Component (RC) LTC promotion selection board, which convened in September 1998.  This promotion list was approved and signed by the President on 24 February 1999.  On the date the list was signed the applicant was still serving in the LTC position identified in the preceding paragraph.  

The applicant was promoted to LTC, effective 27 June 1999, which was his established promotion eligibility date (PED) based on his having attained his  maximum time in grade (MTIG) as a MAJ.  There is no indication in the available evidence that the applicant was ever considered for promotion on the date the list was signed and approved by the President, 24 February 1999, because he was assigned to an authorized LTC position at the time.  

In connection with the processing of this case the enclosed advisory opinion was requested of and provided by the Deputy Assistant Secretary of the Army (DASA) for Reserve Affairs, Mobilization, Readiness, and Training (RAMRT).  In part, this opinion indicates, in effect, that the applicant was promoted in accordance with the Army RC officer promotion policy, which mandates that IMA officers will not be promoted earlier than the date they attain their MTIG.  Thus, the DASA, RAMRT opines that ARPERSCOM correctly established the applicant’s DOR and promotion effective date as 27 June 1999, the date he attained his MTIG as a MAJ.

This opinion indicates that ROPMA promotion policy authorizes officer promotions at any of the following points:  after the final approval authority acts on board recommendations, to include Senate confirmation for officers recommended for promotion to grades above LTC; upon assignment to a position of the higher grade; when an officer serving in the grades of First Lieutenant, CPT, or MAJ attains the statutory time in grade (MTIG); or as determined annually based on the needs of the Army for those officers serving in the grade of LTC.  

These ROPMA promotion policies are incorporated into the Army promotion policy, which establishes promotion criteria for each category of Ready Reserve officers.  The Army promotion  policy is codified in Army Regulation 135-155 and the ROPMA mandated promotion policy changes are incorporated into the enclosed draft change to this regulation which has not yet been published.  

The opinion specifies that Army promotion policy differentiates among the categories of Ready Reserve officers based on the statute and the needs of the Army.  Under Army promotion policy all Active Guard/Reserve (AGR) and Troop Program Unit (drilling reservist) officers who are assigned or attached to valid authorized positions, will be promoted without regard to either statutory or policy MTIG requirements, as authorized under the provisions of Title 10 of the United States Code, section 14308e (10 USC 14308e). 
Conversely, while IMA officers are also assigned to positions of a particular grade, the IMA program does not adhere to the same rigorous standards of grade determinations that are associated with such changes in a USAR TPU or the AGR program.  Therefore, under Army promotion policy, IMA officers are promoted on the date they attain their MTIG, under the provisions of 10 USC 14304b, if they are otherwise qualified for promotion and they do not either request a voluntary delay to or decline the promotion.  

The opinion also comments that Ready Reserve officers, other than those serving in the AGR, are placed in either a unit or non-unit status, under the provisions of Army Regulation 140-1 (Army Reserve:  Mission, Organization, and Training) and this regulation clearly places IMA officers in a non-unit status along with those officers serving in the Individual Ready Reserve (IRR).  

The applicant was provided a copy of the DASA, RAMRT advisory opinion and given an opportunity to submit a response, which he did in the enclosed rebuttal, dated 4 October 2000.  In his rebuttal, the applicant states that the DASA, RAMRT advisory opinion provides no new information and is simply a restatement of the position taken by the Army, which necessitated his application to this Board for relief in the first place.  

He advances the argument that the Army policy does not conform to the applicable law.  He contends that is not equitable nor just, from a leadership point of view, to take the official position that a particular valid legal Selected Reserve position in the Army is superior to another position.  He believes that the Army should not denigrate a particular class of officers, simply based on their unit of assignment.  

In addition, he comments that the Army in categorizing IMA officers as non-unit officers, in effect, takes the position that a valid IMA authorized position is not as good as an AGR or TPU position.  This he claims implies that IMA officers do not perform active duty or drills with their unit of assignment during the year, which of course is not true.  In fact, he states that at a minimum he is required to perform three weeks of active duty and 48 paid drills a year, which equals or exceeds the drilling requirements placed on TPU officers.  In fact, he takes the legal position that an IMA position is equal to an AGR or TPU position. 

The applicant supports his position by pointing out that AGR and TPU positions are found on the Table of Distribution and Allowances (TDA) of USAR units while IMA positions are found on the TDA of active Army units.  

To accept the premise used in the Army RC promotion policy, that IMA positions are not subject to the same rigorous standards as an AGR or TPU position, would be to hold that a valid authorized TDA position of an active Army unit is inferior to a position on the TDA of a Reserve unit.  This position is untenable under the One Army Concept and at the very least, the Army must view an active Army TDA position equal to any Reserve unit TDA position.  

He also challenged the Army to compare his drilling record for the past year with that of any TPU officer for the same period.  He states he began his year with an active duty tour in Hohenfels, Germany, in support of the rotation of the 
1st Infantry Division to Kosovo.  Then he did a 150 day active duty tour with the Office of Public Affairs, Hollywood, California, where his missions included writing and producing the 225th Army Birthday Video; performing military technical advisor duties on the film Pearl Harbor, which will be released next year; and producing a segment on the Army for the Tonight Show.  He also completed an active duty tour at Camp Zama, Japan, where he participated in a major military exercise, and an active duty tour in Weisbaden, Germany, with the Army Corps of Engineers.  Finally, he also performed 48 paid drills as a IMA and 48 unpaid drills with a Reserve Training Unit.  He contends that this record of performance clearly demonstrates a much greater participation level than that of a TPU officer who attends 48 weekend drills and a two week active training tour in a year.  

Further, he indicates that the position taken in the DASA RAMRT advisory opinion, which states that IMA officers should not be promoted under the provisions of 10 USC 14308e like their AGR and TPU counterparts, but instead should be promoted under the provisions of 10 USC 14304b, is not supported in the law.  Clearly 10 USC 14304b makes no specific mention of IMA officers and simply states that all RC officers who are not eligible to be promoted immediately because they do not occupy a vacancy, will nevertheless be promoted when they reach their mandatory promotion date based on their MYIG, and that those officers who do occupy a vacancy in the higher grade will be promoted in accordance with 10 USC 14308e.  

There is no officer category distinction made in either 10 USC 14304b or 14308e, which makes clear that the law should be applied equally to all Ready Reserve officers.  Therefore, if an IMA officer is occupying a vacancy in the higher grade then they should be promoted under 10 USC 14308e, the same as AGR and TPU officers.  Similarly, if AGR and TPU officers do not occupy vacancy they are promoted under 10 USC 14304b.  

He further takes the position that, by law, the Army cannot discriminate between members of the Regular and the RC, nor can they discriminate between different categories of Reservists.  This he claims is established in 10 USC 10209, which is the provision of the law that specifically prohibits discrimination among the 
Reserves.  

He contends this law mandates that all Ready Reserve positions (IMA., AGR, or TPU) be treated equally.  He also claims that the provisions of this law that prohibits discriminating between the Regulars and Reserves, supports the conclusion that a position on the TDA of an active Army unit must be considered equal to a TPU position on the TDA of a Reserve unit.  

All RC officers are promoted under both 10 USC 14304 and 10 USC 14308, and the only discriminator is whether or not they occupy a vacancy in the higher grade.  10 USC 14304b provides the law for the promotion and retention of officers of the Ready Reserve who do not occupy such a position in a higher grade, whether they be assigned to an IMA, TPU, or AGR position, when they reach their MTIG.  Those officers in any RC category who do occupy a position in the higher grade are promoted under the provisions of 10 USC 14308e.

He concludes his rebuttal by indicating that any person with knowledge of the ROPMA knows that it was the intent of Congress to remove the distinction of “unit officers” which is contained in the draft regulation provided by the DASA, RAMRT.  That Congressional intent is clear in the language of 10 USC 14315, which refers to “position vacancy”.  This language replaced the term “vacancies in units” contained in 10 USC 3384, the statute it replaced.  10 USC 14315 is designed to parallel 10 USC 14308 and has the same intent, which is to permit the immediate promotion of any RC officer who is selected by a promotion board and occupies a position in the higher grade.  

In his opinion, the draft regulation provided by the DASA, RAMRT has not been corrected to comply with the provisions of the ROPMA as enacted by Congress.  He attributes this failure of the draft regulation to comply with the Congressional intent of the law to its not receiving a proper JAG legal review by legal officers with knowledge of this particular narrow legal issue.  He contends that if this draft regulation had been staffed through the ARPERSCOM legal advisor, who assisted him in preparing his rebuttal, the regulation would have been corrected to comply with the law.  

Finally, he claims that it should be apparent that the Congressional intent in passing ROPMA was to establish a fair and equitable RC promotion system.  It is equally clear that there was no Congressional intent to restrict 10 USC 14308 to a particular category of RC officers.  Further, promotions made under the provisions 10 USC 14308 clearly apply to all RC officers who are selected by a promotion board, and who occupy a vacancy in the higher grade on the date the promotion list is signed and approved by the President, regardless of the classification of their position.  The applicant’s entire rebuttal with his full and expanded argument is enclosed.  

10 USC 14304 prescribes the law pertaining to the eligibility for consideration for promotion based on attaining the maximum years of service in grade.  Paragraph b provides the legal authority to, in effect, promote an RC officer on the promotion list, without regard to the existence of a vacancy, on the date the officer completes the maximum years of service in grade.  

10 USC 14308 contains the law pertaining to how RC promotions are made.  It states, in pertinent part, that when the report of a selection board 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, in the order of seniority of those officers on the reserve active-status list; and, these officers will, in effect, be promoted to the next higher grade in accordance with regulations prescribed by the Secretary of the military department concerned. 

10 USC 14308e provides the legal authority for Army Reserve promotions to fill vacancies.  It indicates that an officer in the Army Reserve or the Air Force Reserve who is on a promotion list as a result of selection for promotion by a mandatory promotion board may be promoted at any time to fill a vacancy in the a position authorized the higher grade to which the officer is assigned. 

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

1.  The Board noted and carefully evaluated the applicant’s contention that he should have been promoted under the same rules applicable to AGR and TPU officers, under the provisions of 10 USC 14308e, based on his occupying a valid LTC position on the date his promotion list was approved and signed by the President.  

2.  The applicant makes a lucid case for his interpretation of the applicable provisions of the ROPMA and the Board understands his zeal in pursuing the issue.  The Board found his argument logical and his facts mostly accurate; however, this reasoned appeal failed to make a compelling case that an error or injustice exists in his case. 

3.  The applicant is correct in his representation that the law created as a result of the ROPMA allows IMA officers to be promoted under the same rules as AGR and TPU officers; however, this is not the primary factor in this case.  The Board finds the compelling issue in this case is whether or not the Army had the prerogative and authority to establish their existing promotion policy, and if that policy is properly and equitably applied.  

4.  The Board agrees with the applicant that the law does allow for promoting IMA officers under the same rules as AGR and TPU officers but this does not correspondingly mandate this action.  Further, the law does not prohibit the Army from applying separate provisions of the law in establishing a promotion  policy that best assists the Secretary of the Army in managing the force to better meet the needs of the Army.

5.  The legal authority for the existing Army promotion policy is contained in the language of 10 USC 14308.  This language states, in effect, that the RC officers will be promoted in accordance with regulations prescribed by the Secretary of the military department concerned.  This clearly allows the Secretary of the Army discretion in creating promotion policy in order to meet the needs of the Army.  

6.  Army promotion policy, created under the Secretary’s discretionary authority of the law, mandates that all IMA officers be promoted on the date the attain their MTIG, without regard to the position vacancy provisions of the law.  The Board finds the applicant was promoted in accordance with this applicable promotion policy and therefore, finds no propriety or equity basis on which to grant the requested relief.

7.  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 has failed to submit evidence that would satisfy this requirement.

8.  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

___fe ___  ___tsk __  __wdb___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000038105	
SUFFIX		
RECON		
DATE BOARDED	2000/11/02	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.