MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 January 2001                   
	DOCKET NUMBER:   AR2000043494

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen A. Heinz		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:  That his date of rank be adjusted to 27 February 1998.

APPLICANT STATES:  That due to the Reserve Officer Personnel Management Act (ROPMA) changes, the wait for promotion on active duty is psychologically damaging and a financial burden.  If he were an active duty officer he would have been promoted to captain in two and one-half years.  Under ROPMA, he must be a first lieutenant (1LT) for five years before promotion to captain.  He adheres to the same rules, regulations and standards as his active duty counterparts.  There cannot be a Reserve component representing 54 percent of the total Army and yet still be two different Armies.

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

He was commissioned in the U. S. Army Reserve (USAR) on 17 December 1993.  He entered active duty and was released from active duty on 26 February 1997 upon completing his required active service.  (His Certificate of Release or Discharge from Active Duty, DD Form 214, shows that he entered active duty on 7 September 1993.  His active duty orders show a reporting date to his Officer Basic course of 28 February 1994.  His Officer Evaluation Reports show a second lieutenant date of rank of 27 February 1994).  He was promoted to 1LT on 27 February 1996.

On or about 16 March 1997, the applicant was voluntarily ordered to active duty in an Active Guard/Reserve (AGR) status and assigned to the 82d Airborne Division Detachment, Fort Bragg, NC.  He serves as the Operations Officer, an O-4 position.  His duties include preparing the Detachment to mobilize and deploy as an augmentation to the 82d Airborne Division.

The applicant was selected for promotion by the 1999 Reserve Components Selection Board.  The board results were approved for release on 18 April 2000 and he was subsequently promoted to captain with a date of rank of 18 April 2000.

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.

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 captain is 5 years.

Army Regulation 135-18 prescribes the policy for the administration of the AGR Program.  It states that personnel in the AGR Program will serve in positions for the purposes of organizing, administering, recruiting, instructing, or training the National Guard and the U. S. Army Reserve.

The U. S. Army Reserve is structured as a Federal force consisting of individual reinforcements and combat, combat support, combat service support and training type units organized and maintained to provide military training in peacetime and a reservoir of training units and individuals reservists to be ordered to active duty in the event of a national emergency.

In the processing of this case, an advisory opinion was obtained from the Promotions and Notifications Branch, Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office recommended disapproval of the applicant’s request.  

A copy of the advisory opinion was provided to the applicant for rebuttal.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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.

2.  ROPMA did not mandate the different time in grade promotion requirements between Reserve component officers and officers on the active duty list.  That was in effect by statute before ROPMA.  The applicant was promoted to captain and received his date of rank of 18 April 2000 in accordance with the statute.  The Board concludes that there is no injustice as other AGR officers in similar circumstances were also promoted under the same time in grade criteria.

3.  The Board acknowledges that there is one “Total Army.”  However, the active component and the Reserve components have always been administered under different sets of rules and regulations.  As a commissioned officer, the applicant should have been fully aware of that before he was voluntarily called to active duty.  The Board finds there is nothing inherently inequitable about the different promotion requirements between active duty list and Reserve component officers mandated by Congress.
4.  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

__jh____  __le____  __kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043494	
SUFFIX		
RECON		
DATE BOARDED	20010125	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.