PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            9 November 2000
	DOCKET NUMBER:   AR2000040358

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Ms. Barbara J. Ellis		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 his date of rank (DOR) to Major (MAJ) and promotion eligibility date (PED) to the next higher grade be adjusted to 
29 October 1999.

3.  The applicant 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 30 October 1992, which should have established his MYIG date to MAJ as 29 October 1999. 

4.  The applicant’s military records show that he was commissioned a USAR 
2nd lieutenant (2LT) on 1 November 1985.  His CPT DOR and PED to MAJ was 
30 October 1992.  He was promoted to MAJ, effective 3 January 2000, and he is currently serving in an Active Guard/Reserve (AGR) status, with the Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri.

5.  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.

6.  On 14 January 2000, a promotion memorandum, pertaining to the applicant, was published by the ARPERSCOM.  This document promoted the applicant to the rank of MAJ, effective 3 January 2000, which also was the date established as his DOR to MAJ and PED to the next higher grade. 

7.  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.

8.  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 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. 
9.  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. 

10.  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. 

11.  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, 30 October 1992, that his DOR to MAJ should be 29 October 1999, which also should be established as his PED for consideration to the next higher grade.  By law, an 
RC officer who is selected for promotion to MAJ, if not promoted sooner, will be promoted not later than the date they reach their MYIG as a CPT of 7 years. 

2.  Although the Board finds 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 additional back pay or allowances.  

3.  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 the DOR to MAJ and PED of the individual concerned is 
29 October 1999.

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

BOARD VOTE:  

___jlp___  ___bje __  ___owt __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Jennifer L. Prater____
		        CHAIRPERSON

INDEX

CASE ID	AR2000040358	
SUFFIX		
RECON		
DATE BOARDED	2000/11/09	
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.  21	102.0700	
2.		
3.		
4.		
5.		
6.