PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  7 December 2000
	DOCKET NUMBER:  AR2000044199

	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. Raymond V. O’Connor		Chairperson	
	Mr. Ernest P. Lutz		Member	
	Mr. John P. Infante		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 correction to his date of rank for captain.

3.  The applicant states he was commissioned as a second lieutenant effective 25 September 1992, promoted to first lieutenant effective 24 September 1995 and met the 7 years as a lieutenant requirements under the Reserve Officer Personnel Management Act (ROPMA).  He submits a copy of his appointment memorandum dated 25 September 1992, promotion memorandum dated 24 September 1995, promotion memorandum dated 16 May 2000, a memorandum from his unit verifying his assignment to a captain position, and his unit’s manning roster in support of his request. 

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 25 September 1992.  He was promoted to first lieutenant effective 24 September 1995.  His maximum years of time in grade (MYIG) service date for promotion to captain was 23 September 1999.

5.  He was assigned to captain positions effective 5 October 1996 and 1 February 1998.

6.  He was considered and selected for promotion to captain by the 1999 Reserve Components Selection Board (RCSB) which convened 9 November 1999.  The President approved the results of the board on 18 April 2000.

7.  A promotion memorandum dated 16 May 2000, showed his promotion to captain effective 18 April 2000, the date the President approved the board.

8.  The ROPMA, a public law 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.  Under ROPMA, an officer selected for the first time for promotion to captain after serving 7 years total as a second and first lieutenant may be promoted on or before the date that he/she completed the MYIG 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, United States Code, chapter 1405, provides for promotion of officers selected by an RCSB at any time on or before their MYIG date.

10.  The ROPMA promotion boards for captain were administratively delayed.  The Presidential approvals of the results of the pertinent promotion boards were also administratively delayed.  Based on normal processing, they should have been convened earlier and approved approximately 75 days after the respective convening dates.

11.  The Chief, Promotion and Notifications Branch, Office of Promotions, the Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant’s date of rank to first lieutenant was 4 April 1995 [sic].  Based on the 5 years time in grade requirement, his promotion eligibility date was 24 April 2000.  The applicant was considered and selected by the 1999 RCSB and given the date of rank of 18 April 2000, the date the President approved the promotion board.  This is the earliest date the applicant can receive.  It was recommended that the applicant’s request be disapproved.

12.  The opinion was forwarded to the applicant on 14 September 2000.  In his rebuttal dated 18 September 2000, the applicant states that the problems with ROPMA were recently discovered and found to be unfair to those officers who were commissioned and promoted to first lieutenant prior to 1996.  He further states his commission date and date of rank listed by PERSCOM are inaccurate and encloses documentation confirming his true date of commission and promotion to first lieutenant.

CONCLUSIONS:

1.  Notwithstanding the opinion from PERSCOM, the applicant is entitled to adjustment to his date of rank for captain to 1 February 1999.  He was eligible for promotion in advance of his MYIG date based on the first-time RCSB selection and his occupation of a higher graded position at the time.

2.  The Board concludes that had there not been an administrative delay in the promotion process, the applicant would have been promoted with a date of rank prior to his MYIG date of 23 September 1999, as provided for by U.S. Code.

3.  In addition to the foregoing, the Board concludes that the applicant was prevented from equitable promotion consideration, unlike others in his grade in earlier and later year groups who were considered before and after him, and was unjustly considered well after his eligibility.  He was eligible for promotion consideration prior to his MYIG date so that, if selected, he may have been promoted on or prior to his MYIG date.  He was unjustly required to serve in grade beyond the 7 years required by ROPMA and denied timely consideration.  The further delay for promotion board proceeding preparation and processing for Presidential approval compounded the unfair circumstances.  It is further concluded therefore, that had the applicant been timely considered for promotion prior to his MYIG date, and based on his first-time consideration/selection, a reasonable chance would have resulted that he would have been selected and respectively promoted on or before his MYIG date, and entitled to an earlier promotion, DOR, and pay and allowances.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the individual concerned was promoted to captain with an adjusted date of rank of 1 February 1999 and entitled to the pay and allowances in the higher grade on that date.

BOARD VOTE:  

___ro___  __el____  __ji____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O’Connor__
		        CHAIRPERSON

INDEX

CASE ID	AR2000044199	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001207	
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.		
3.		
4.		
5.		
6.