PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            31 August 2000
	DOCKET NUMBER:   AR2000038337

	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	
	Mr. Joseph A. Adriance		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.  In two separate applications to this Board, the applicant requests, in effect, that the effective date of his promotion to Major (MAJ) be changed to 
1 September 1999 and that his MAJ date of rank (DOR) be adjusted to 19 May 1999.

3.  In the first application, dated 2 February 2000, the applicant states, in effect, that the normal waiting time between when a promotion board adjourns and the selections are announced is 120 days, as codified on the Army Reserve Personnel Command (ARPERSCOM) web site.  In his case it took over 
10 months for the results of the promotion board to be released and although this is only a 4 month difference from the average, the current effective date has impacted his movement on permanent change of station (PCS) assignment, it will also affect future promotion consideration, and finally it will ultimately impact on his retirement status.  

4.  In the second application, dated 17 May 2000, he states, in effect, that the maximum years in grade (MYIG) for a United States Army Reserve (USAR) Captain (CPT) is 7 years, under the provisions of the Reserve Officer Personnel Management Act (ROPMA).  His DOR to CPT was 20 May 1992, which should have established his MYIG date to MAJ as 19 May 1999.  He further comments that he has been working in a MAJ position since 1 May 1998. 

5.  The applicant’s military records show that he is currently serving as a major in the USAR in an Active Guard/Reserve (AGR) status.  His CPT DOR and PED was 20 May 1992.  He was promoted to MAJ, effective 3 January 2000, and he is currently serving in a MAJ position in an AGR status.

6.  The 1999 Reserve Component (RC) MAJ promotion selection board convened on 2 March 1999 and adjourned on 2 April 1999.  The promotion list was approved by the President on 3 January 2000 and the list was released by ARPERSCOM on 14 January 2000. 

7.  On 14 January 2000, ARPERSCOM published a memorandum which authorized the applicant’s promotion to MAJ.  It indicated that the effective date of the applicant’s promotion and his DOR to MAJ were both 3 January 2000, the date the President approved and signed the 1999 RC MAJ promotion list.

8.  During the processing of this case a staff member of this Board contacted the promotions branch at ARPERSCOM in order to determine the specific circumstances surrounding the processing of the 1999 RC MAJ promotion selection board.  No special circumstances or problems were identified with the processing of this selection board and officials commented that the applicant was processed under the same rules as everyone else that competed and was selected for promotion by the 1999 RC MAJ promotion selection board.
9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers of the USAR.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the years required in the lower grade (MYIG) requirement for promotion to MAJ is 7 years.

10.  Section III (Dates of Promotion) of the regulation provides the procedures for computing promotion effective dates of all RC officers.  It states, in pertinent part, that unless otherwise entitled by law, that antedating of either the effective date of promotion or the PED will not entitle an RC officer to increased pay and allowances.  However, it does establish that the PED and DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade.  Further, it states that an officer’s PED will become his DOR upon promotion and Title 10 of the United States Code, section 14304 (10 USC 14304) provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law.  Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the MYIG 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.  This provision of the law establishes the MYIG for CPT going to MAJ as 7 years. 

11.  Paragraph (b) of 10 USC 14304 states, in effect, that an RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law. 

12.  A separate provision of the law, 10 USC 12203 establishes, in effect, that 
RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President.  It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

CONCLUSIONS:

1.  The Board concludes, based on the applicant’s DOR to CPT, 20 May 1992, that his DOR to Major should be established as 19 May 1999, which also should be established as his PED for consideration to the next higher grade.  This conclusion is based on the legal provisions established in 10 USC 14304, which establishes the MYIG for promotion to MAJ as 7 years and, in effect, that an RC officer who is selected for promotion to MAJ, if not promoted sooner, shall be promoted not later than the date they reach their MYIG.  

2.  Although the Board found a legal basis to support adjusting the applicant’s DOR and PED and concludes that this action would be appropriate, this does not, by law and regulation, entitle the applicant to any adjustment to his promotion effective date or to any additional back pay or allowances.  

3.  The provisions of the ROPMA dictate that the effective date of USAR officer promotions will be no earlier than the date the promotion list is approved and signed by the President.  In this case, the promotion list was signed by the President on 3 January 2000, which is the date established as the effective date of the applicant’s promotion.  

4.  As verified by ARPERSCOM, the processing time of this promotion list did not unfairly place the applicant at a disadvantage in relation to his contemporaries, who were also subjected to the same process.  Therefore, the Board finds no injustice was served upon the applicant as a result of the list processing time and therefore, concludes that a change to the effective date of the applicant’s promotion to MAJ is not appropriate. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the DOR to MAJ and PED of the individual concerned is 19 May 1999.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__be____  ___sac__  __jrs ____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2000038337	
SUFFIX		
RECON		
DATE BOARDED	2000/08/31	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A 	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  21	102.0700	
2.		
3.		
4.