PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            14 September 2000
	DOCKET NUMBER:   AR2000038376

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, Jr.		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, in effect, that he be promoted to Major (MAJ) with a date of rank (DOR) of 22 August 1999. 

3.  The applicant states, in effect, that in November 1998, after being nonselected for promotion to MAJ by the Fiscal Year (FY) 1998 Army Competitive Category (ACC) promotion selection board, he applied for the Active Guard Reserve (AGR) program.  He claims that between November 1998 and 
3 September 1999, he contacted several branches of Army Reserve Personnel Command (ARPERSCOM) questioning whether or not the results of the active duty ACC promotion list to MAJ would be honored by ARPERSCOM if he were selected for promotion by that board.  He indicates that several individuals at various ARPERSCOM agencies told him that the list would be honored if he were selected for promotion and was at that time serving in a MAJ position in an AGR status.  He indicates that based on the advice and briefings he received from ARPERSCOM officials, and the requirements for entering the AGR program, he elected to leave active duty with the Active Component (AC) prior to the release of the ACC promotion list.  He refers to other officers in the same situation who also received similar briefings and provides the name of one who has also applied to this Board for relief.  He concludes that he originally planned to leave the AC in December 1999 but based on the briefings and assurances he received by ARPERSCOM agencies he instead elected to leave to accept an AGR tour in August 1999.  Finally, he comments that as a result of his not being eligible for consideration for promotion by a Reserve Component (RC) selection board during the proper timeframe, and his selection by the AC not being honored, he has been unjustly denied the opportunity to compete for promotion with his peers.  The applicant’s expanded statement is enclosed. 

4.  The applicant’s military records show that he was appointed a 2nd Lieutenant in the United States Army Reserve (USAR) on 25 May 1988 and that he entered active duty as a member of the AC on 5 July 1988.  While serving with the AC he was promoted to the rank of Captain (CPT) on 1 December 1992.  He served on active duty with the AC until he was released from active duty (REFRAD) on 
21 August 1999.  

5.  On 22 August 1999, the applicant entered into an AGR status and he is currently serving in that status on active duty.  He is assigned to the 87th Division 
(Training Support), Birmingham, Alabama, and is performing duties, in an authorized MAJ position, as the Chief of Personnel Actions, Assistant 
Chief of Staff/G-1.

6.  On 20 April 1999, while the applicant was still serving on active duty with the AC, the FY 1999 MAJ ACC promotion selection board convened to consider officers for promotion to the grade of MAJ.  The Board adjourned on 19 May 1999 and the “FY 99 Promotion List for Major, Army Competitive Category” memorandum containing the board results and the list of officers selected for promotion to MAJ was dated 11 August 1999, prior to the applicant’s AC REFRAD.  This memorandum was not released and published until 7 October 1999, which was subsequent to the applicant’s AC REFRAD.

7.  This promotion memorandum contained specific instructions that indicated that the commander of the Army Personnel Command (PERSCOM) was responsible to remove from the list those officers who separated or retired prior to being promoted from the list, without provision for reinstatement if they subsequently return to active duty.

8.  On 2 March 1999, the 1999 RC MAJ promotion selection board convened, to consider RC CPTs with a DOR of 16 May 1993 or earlier for promotion to MAJ.  The board adjourned on 2 April 1999, prior to the applicant’s AC REFRAD.  However, the promotion list was not approved by the President until 3 January 2000 or released by ARPERSCOM until 14 January 2000, subsequent to the applicant’s entering the RC in an AGR status. 

9.  During the processing of this case an advisory opinion was requested of and received from the Office of RC Promotions at ARPERSCOM.  They opine that the applicant was in fact not given competent advice by ARPERSCOM agencies regarding the effect the Reserve Officer Personnel Management Act (ROPMA) would have on his promotion to MAJ.  Further, they indicate that the applicant was told that his name would be transferred to the RC promotion list upon his separation from the AC.  In view of the facts in this case, they opine that the injustice that resulted from the poor advice provided the applicant be remedied by correcting his record to show he was selected for RC promotion to MAJ.  The applicant was provided a copy of this favorable opinion and afforded an opportunity to respond and on 22 June 2000, he provided his concurrence.

10.  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. 

11.  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.  

12.  This section further states that an officer’s PED will become his DOR upon promotion and this date will be used to establish the relative seniority for officers holding the same rank.  Finally, it states that DOR will be used to establish the officer’s PED to the next higher grade. Under this policy, based on his DOR to CPT of 1 December 1992, the applicant’s RC promotion eligibility date (PED) for MAJ would be established as 30 November 1999. 

13.  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. 

14.  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. 

15.  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.  After carefully examining the evidence or record and the independent evidence submitted by the applicant, the Board finds that an injustice to the applicant resulted from his receiving incorrect information from official ARPERSCOM sources.  Therefore, the Board finds relief is warranted in this case. 

2.  The Board, however, does not concur with the applicant’s assertion that he should be promoted to MAJ, effective 22 August 1999, the date he transferred to AGR status, because he was on the AC MAJ promotion list at that time.  The injustice to the applicant resulted from the advice he received from ARPERSCOM officials which placed him at a disadvantage with his RC contemporaries, and was not the result of the AC promotion process.

3.  The Board determined that it was appropriate for the applicant to be removed from the AC promotion list.  The AC policy was clearly delineated in the FY 99 Promotion List for MAJ, ACC memorandum, which stated, in effect,  that officers on the promotion list be removed if they separated or retired prior to being promoted, without provision for reinstatement if they subsequently returned to active duty.  The applicant clearly fit this category as a result of the voluntary decision to leave the AC prior to the release of the promotion list and the Board finds no injustice associated with this action.  

4.  The injustice in this case clearly was the result of improper advice and guidance received from RC officials and the effect of this was the applicant being placed at a competitive disadvantage with his RC contemporaries.  Therefore, the Board finds that the appropriate remedy to make the applicant whole should come from RC policy.  The Board concurs with the remedy recommended in the advisory opinion provided by the Chief of RC Promotions, ARPERSCOM, which suggests that the applicant’s record be corrected to show he was selected for RC promotion to MAJ.  

5.  Therefore, in the interest of justice and equity and as an exception to policy, the Board concludes it would be appropriate to remedy this documented injustice to the applicant by promoting him with his RC peers under the provisions of ROPMA.  This should result in his being added to the 1999 RC MAJ promotion list, as an exception to policy, and his being promoted as if he were on the original list.   

6.  The applicant should be promoted to the rank of MAJ, from the 1999 RC MAJ promotion list, effective, effective 3 January 2000, the date the President approved the list.  Based on his CPT DOR of 1 December 1992, his DOR to MAJ should be established as 30 November 1999, which also should be established as his PED for consideration to the next higher grade.  

7.  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:

a.  by adding the individual concerned to the 1999 RC MAJ promotion list;

b.  by promoting the individual concerned to the rank of MAJ effective 
3 January 2000; and 

c.  by showing the DOR to MAJ and PED of the individual concerned is 
30 November 1999.

2.  That the individual concerned be provided all back pay and allowances due as a result of his being promoted to the rank of MAJ, effective 3 January 2000.

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

BOARD VOTE:  

__rvo ___  __eja____  __mkp__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2000038379	
SUFFIX		
RECON		
DATE BOARDED	2000/09/14	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.