PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  18 January 2001
	DOCKET NUMBER:  AR2000043760

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Melvin H. Meyer		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 receive reconsideration for back pay for his retroactive Reserve promotion.

3.  The applicant states, in effect, that he was promoted under Title 10, United States Code 1552 and should be authorized back pay.  He further states that there is a disparity between Regular Army officers who receive back pay for retroactive promotion and Reserve officers who do not.  

4.  The applicant’s military records show he was serving as a lieutenant colonel in the Reserve with a date of rank of 3 January 1989 when he was considered and not selected for promotion to colonel by the 1994 Reserve Components Selection Board (RCSB).  

5.  His promotion eligibility date (PED) for colonel at the time was 2 January 1994, based upon completion of 5 years time in the lower grade.

6.  On 3 March 1995, he applied to the Army Board for Correction of Military Records (ABCMR) requesting promotion reconsideration by a Standby Advisory Board (STAB).  The applicant stated that his records did not include an officer evaluation report ending 25 October 1993, when it was reviewed by the 1994 RCSB.

7.  He was transferred to the Individual Ready Reserve (IRR) effective 20 January 1996.

8.  Based upon the material error in his records at the time of his consideration by the 1994 RCSB, this Board directed that the applicant’s records be reviewed by a STAB under 1994 criteria.  He was considered and selected for promotion to colonel by the Reserve Components Promotion Advisory Board, which convened on 2 April 1996.

9.  On 7 August 1996, the ABCMR directed that the applicant be promoted to colonel with a date of eligibility as determined by appropriate Departmental officials.  This Board further directed that the applicant be promoted to the next higher grade provided he is otherwise qualified and meets all other prerequisites for promotion.   This Board’s action did not specify that the applicant would receive retroactive back pay and allowances.

10.  A Promotion Memorandum dated 28 July 1997 was issued to the applicant indicating a promotion effective date of 25 July 1996 for promotion to colonel with a date of rank of 2 January 1994.

11.  On 22 August 2000, a staff official of the Office of Reserve Promotions advised the Board that the applicant was promoted to colonel with a date of rank of 2 June 1994 [sic].  His promotion effective date was 20 January 1996, the date he was transferred from a Troop Program Unit (TPU) to the IRR.  A copy of ABCMR Proceedings was forwarded to Defense Finance and Accounting Service.

12.  Title 10, United States Code, section 1552, provides that the Secretary of a military department may correct any military records of the Secretary’s department when the Secretary considered it necessary to correct an error or remove an injustice.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.  Section 1552, further specifies that the Secretary concerned may pay a claim for the loss of pay and allowances, if, as a result of correcting a record under this section.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that officers selected by a STAB are eligible for the same date of rank that they would have received by the original board in which the error occurred.  The effective date may be dependent on the officer meeting the eligibility criteria for promotion to the next higher grade, including occupying a higher graded position or transfer to the IRR.

14.  The regulation further specifies that the effective date of promotion is the date the officer is eligible for pay and allowances in the higher grade.  When the officer does not meet the qualifications for promotion, the effective date may be advanced to the date qualifications are met.  Unit officers selected will be promoted on their PED provided they are assigned to a position vacancy in the higher grade.  The effective date of assignment to the higher grade will be the effective date of promotion for officers whose PED is prior to the date of assignment.

15.  The Army Review Boards Agency, Assistant Legal Advisor, expressed the opinion that the ABCMR intended to place the applicant in the same position that he would have been in but for the fact that his record was improperly constituted. Thus, the applicant is entitled to retroactive back pay and benefits.  However, as with any other Reserve officer selected for promotion by the 1994 RCSB, the effective date of promotion to the next higher grade should have taken place on the date of eligibility for the grade.

16.  It is further opined that it appears the applicant was not assigned to a higher graded position prior to or after his selection for promotion.  Therefore, he could not have been promoted to colonel until his promotion eligibility date and transfer 

to the IRR.  It also appears the applicant was eligible for promotion to colonel on 20 January 1996, the date of his transfer to the IRR and has been promoted to colonel with that effective date.  The applicant failed to establish that he was treated illegally or that the application of the law caused him unjust or unfair treatment with respect to other officers similarly situated.  The evidence available indicates that the applicant was treated consisted with statutory and regulatory guidelines, as any other Reserve officer under the same circumstances.  The applicant should be allowed to submit additional evidence to establish whether is date of rank or effective date are inaccurate and the reasons why he feels these dates are inaccurate.

17.  On 22 August 2000, an official of the Reserve Promotion Branch advised a staff of the ABCMR, by e-mail, that the applicant was promoted to colonel effective 20 January 1996, with the date of rank of 2 June 1994 [sic].

18.  The opinion was forwarded to the applicant for rebuttal on 7 September 2000.  In his rebuttal dated 29 September 2000, he states that he was determined to be ineligible to compete for any colonel positions because he was not a colonel or on a selection list for colonel.  He was transferred to the IRR in January 1996, after returning from extended active duty and this was prior to his knowledge of his selection to colonel by the ABCMR in 1997.  Title 10 makes no distinction between regular Army and Reserve promotion as to the ABCMR promotion to colonel.  Clearly, if he had been selected through normal procedures he would have had a colonel slot in his unit or would have transferred to the IRR and promoted immediately.  He had no idea in 1993-1994 that he should transfer to the IRR to maintain back pay eligibility for his selection to colonel in 1997.  An information paper on the Army Officer Special Selection Boards for Promotion Consideration indicated if an officer is selected for promotion, the officer will receive the same date of rank, effective date and pay as the officer would have received if the officer had been recommended for promotion by the original promotion board.  The USAR appears to modify this paragraph to make it agree with normal Reserve officer promotions and thereby ignore the pay issue.  To eliminate any back pay for Reserve officers promoted under ABCMR actions does not make them “whole.”  This is not in keeping with the intent of Title 10, common sense or in the interest of justice.

19.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.

20.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on active duty.

CONCLUSIONS:

1.  The applicant is entitled to back pay and allowances in the grade of colonel from his promotion effective date of 20 January 1996.  His date of rank of 2 January 1994 is proper and should remain unchanged.

2.  His contentions have been noted, however, it was the ABCMR’s intent to make the applicant as whole as possible under pertinent Reserve promotion policy.  His date of rank was adjusted accordingly as prescribed within current Reserve promotion regulations.  Active Army officer promotion regulations do not provide for promotion reconsideration and selection by a STAB of Reserve officers not on active duty.  Reserve promotion policy afforded the applicant the same opportunity offered to other Reserve officers in the same situation.  His contention that the Reserve and Regular officers promotion requirements differ is true as dictated by law and regulations.  However, this does not show error or injustice in his case.  Army Regulation 135-155 is applicable in his case.  Army Regulation 600-8-29 is not.

3.  The Board further notes his contention that if he had been promoted through normal procedures he would have had a colonel slot.  However, he also states that in 1993-1994 he had no idea he should transfer to the IRR to maintain back pay eligibility.  The applicant presumes he would have been placed in a colonel slot in his unit had he been promoted under normal procedures; however, the evidence does not support this presumption.

4.  The Board also notes that under the authority of Title 10, United States Code, Section 1552, the ABCMR’s action granted correction of the applicant’s military records based on an error or injustice, and provided him the opportunity for promotion reconsideration.  Title 10, further entitled the applicant to pay and allowances as a result of the correction to his record.  The applicant was not promoted under the authority of Title 10, Section 1552, he was promoted to colonel under the authority of Army Regulation 135-155.

5.  It is also noted that the applicant did not submit any additional evidence to establish his effective date of promotion as inaccurate, or should otherwise be changed to a date earlier than 20 January 1996.  The evidence shows he was promoted effective the date of his transfer to the IRR.

6.  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 individual concerned was promoted to colonel effective 20 January 1996, with back pay and allowances.

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

BOARD VOTE:  

__js___  ___jm___  __mm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____John N. Slone_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000043760	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.04	
3.		
4.		
5.		
6.