MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 September 2000
	DOCKET NUMBER:   AR2000038339

	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. Hubert O. Fry, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 Major (MAJ) be adjusted from 3 January 2000 to 19 May 1999.

APPLICANT STATES:  In effect, that the United States Army Reserve (USAR) failed to comply with the law.  He indicates that Title 10 of the United States Code, section 14304 (10 USC 14304) requires promotion board results to be published prior to an officer reaching his maximum years in grade (MYIG) for his rank.  In his case, he claims this date should have been 19 May 1999.  He also contends that had the USAR complied with the law and released the promotion list on time he would have been promoted on 19 May 1999.  

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

He is currently serving as a MAJ in the USAR in an Active Guard/Reserve (AGR) status.  The evidence of record also includes verification that the applicant’s DOR to Captain (CPT) was 1 February 1993.  

The applicant was considered for and selected for promotion by the 1999 Reserve Component (RC) MAJ Army Promotion List (APL) board.  This board convened on 2 March 1999 and the resultant selection list was approved  and signed by the President on 3 January 2000.  

On 14 January 2000, the Army Reserve Personnel Command (ARPERSCOM) published the results of the 1999 RC MAJ APL board.  The applicant’s name was included on this list and he was promoted to MAJ accordingly, effective 
3 January 2000.  This is the date the promotion selection list was approved and signed by the President. 

In connection with this case, an advisory opinion was requested and received from the ARPERSCOM Chief of RC Promotions.  He recommended disapproval of the applicant’s request.  He indicated that the basis for his recommendation was that the applicant’s CPT DOR of 1 February 1993 would have established his MYIG promotion eligibility date (PED) to MAJ as 31 January 2000.  

The ARPERSCOM Promotion Chief also opined that given the applicant had not yet reached his MYIG/PED to MAJ on 3 January 2000, the date the promotion list was approved by the President, his promotion effective date and DOR to MAJ were properly established as 3 January 2000, which is the earliest possible date he could have been promoted.  On 7 June 2000, the applicant was provided a copy of this advisory opinion and given the opportunity to rebut its contents.  However, to date, the applicant has failed to respond. 

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.  

Section III (Dates of Promotion) of the regulation provides the procedures for computing promotion effective dates of all RC officers.  It establishes 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 this date will be used to establish the relative seniority for officer’s holding the same rank.  Finally, it states that DOR will be used to establish the officer’s PED to the next higher grade. 

The Reserve Officer Personnel Management Act (ROPMA) was enacted into law by the Congress and signed into law by the President on 5 October 1994.  The ROPMA became fully effective on 1 October 1996 and its primary objectives were to update and consolidate those laws governing RC officers; to achieve uniformity and compatibility with the management practices applied to active component officers; and to govern all aspects of the personnel management of RC officers. 

Promotion procedures were significantly changed by ROPMA.  The procedural changes that pertain to how RC officers were promoted were codified in 
10 USC 14308.  This provision of the law states, in pertinent part, that upon approval by the President of a promotion board report, the report becomes a promotion list and officers are placed on the list in order of seniority.  It also indicates that the President’s approval establishes the public release date for the list and is the earliest possible effective date of promotion for officers on that list.  

The legal authority for eligibility for consideration for promotion based on MYIG is provided in 10 USC 14304.  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. 

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 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. 

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.  The Board noted the contentions of the applicant that his DOR to MAJ should be adjusted to 19 May 1999 based on MYIG provisions of the law.  However, neither the evidence of record or the independent evidence submitted by the applicant supports this claim.

2.  The Board determined that the 1999 RC MAJ promotion selection board promotion list was processed in accordance with applicable law and regulation and found no evidence to show that the applicant was treated any differently than the other USAR officers who were also on this list. 

3.  By law and regulation, the MYIG/PED for RC officers going from CPT to MAJ is 7 years.  Under these provisions, given his DOR to CPT was 1 February 1993, the applicant did not qualify for promotion under MYIG provisions until 
31 January 2000.  Therefore, the Board finds no basis for adjusting the applicant’s DOR to MAJ.

4.  Lacking a basis for a MYIG DOR adjustment, 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 list was signed by the President on 3 January 2000, which is in fact the same date the applicant was promoted.  Under the provisions of the ROPMA this is the earliest date he could have been promoted.

5.  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.

6.  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

__rks ___  ___hof  __  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038339	
SUFFIX		
RECON		
DATE BOARDED	2000/09/19	
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.  21	102.0700	
2.		
3.		
4.		
5.		
6.