PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 December 2000                   
	DOCKET NUMBER:   AR2000039657

	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:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 her date of rank and the effective date of her promotion be corrected.

3.  The applicant states that through no fault of her own her promotion list was not approved by the President until 3 January 2000.  This creates a significant financial hardship for her and violates the intent of the Reserve Officer Personnel Management Act.  She completed her required years of service on 21 May 1999.

4.  The applicant's military records are not available.  The information contained herein was obtained from evidence provided by the applicant and from information obtained from the U. S. Total Army Personnel Command, (PERSCOM), Office of Promotions, Reserve Components.

5.  The applicant is in the Active Guard/Reserve (AGR) program.  PERSCOM shows that she was promoted to captain on 20 May 1992.  Based on the 7 years time in grade requirement, her maximum years of service in grade (MYIG) date for promotion to major was 19 May 1999.  She was assigned to a position graded as major on 14 September 1998.

6.  The applicant was considered and selected for promotion to major by the 1999 Reserve Components selection board that convened on 2 March 1999.  The President of the United States approved the results of the selection board on 3 January 2000.  The approval was administratively delayed.  Except for the administrative delay, the promotion board proceeding preparation and processing could conceivably have been completed by May 1999.

7.  On 14 January 2000, PERSCOM, St. Louis, MO notified the applicant that she was promoted to major effective 3 January 2000 with a date of rank of 3 January 2000.

8.  The Reserve Officer Personnel Management Act (ROPMA), enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers.  The law became effective 1 October 1996.  ROPMA provides that the MYIG for a Reserve captain in order to be eligible for promotion to major is 7 years and that an officer selected the first time for promotion to the next higher grade may be promoted on or before the date he completed his maximum service.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade for promotion, unless assigned to the Individual Ready Reserve.

9.  Title 10, U. S. Code, section 12203 provides that appointments of reserve officers in commissioned grades above the grade of lieutenant colonel shall be made by the President, by and with the advice and consent of the Senate.  Appointments of reserve officers in commissioned grades of lieutenant colonel and below shall be made by the President alone.
10.  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.

11.  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.

12.  In similar cases the Office of the Judge Advocate General has previously opined that USAR AGR officers, who are serving in positions requiring the grade to which they will be promoted, will have an effective date and date of rank in the higher grade as the date of issuance of the promotion memorandum.  Additionally, the issuance of the promotion memorandum may not precede the approval by the President of the promotion board results.  The previous authority of Title 10, U. S. code, section 3363(d) to antedate the effective dates of reserve officer promotions was repealed without replacement by ROPMA.

13.  In the processing of this case, an advisory opinion was obtained from the    PERSCOM, Office of Promotions, Reserve Components which recommended that the applicant’s request be approved.

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

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 or she would be promoted on or before the date that he or she 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 her date of rank to be the date she completed the maximum years of service, i. e., 19 May 1999.  Notwithstanding the advisory opinion, the Board concludes that there is no unfairness in not correcting the effective date of her 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:

1.  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.

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

BOARD VOTE:  

__amc___  __alr___  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Ann M. Campbell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039657	
SUFFIX		
RECON		
DATE BOARDED	20001205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.04	
2.	131.05	
3.		
4.		
5.		
6.