PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 February 2001
	DOCKET NUMBER:   AR2000045542

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		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 that his date of rank (DOR) to lieutenant colonel (LTC) be adjusted to 23 January 2000 and be authorized back pay.

3.  The applicant states that he met the mandatory years in the lower grade at the time of his selection and his records show he reached his maximum time in grade as of 23 January 2000.  In support of his application he submits DA Form 4037-E (Officer Record Brief), active duty orders with a reporting date of 30 June 1999, promotion memorandums to major and LTC, and a copy of statutory provision 14304 (Eligibility for consideration for promotion: maximum years of service for promotion).

4.  The applicant’s military records show that he was serving in the Reserve and was promoted to LTC with a DOR 12 April 2000.

5.  He was assigned to a lieutenant colonel position effective 30 June 1999.

6.  Based on the required 7 years time in grade his maximum years of service in grade (MYIG) date for promotion to LTC was 23 January 2000.

7.  He was considered and selected for promotion to LTC by the 1999 Reserve Components Selection Board (RCSB) that convened on 6 September 1999. 

8.  A promotion memorandum dated 9 May 2000 was issued to him giving him 
12 April 2000 as his effective date and DOR to LTC.

9.  In the processing of this case an advisory opinion was obtained from US Army Reserve Personnel Command (ARPERSCOM).  ARPERSCOM stated that the applicant was selected for promotion to lieutenant colonel by the 1999 RCSB and given the date of rank of 12 April 2000, the date the President approved the promotion board.  Also, the applicant completed 7 years time in grade and was placed in a 05 position effective 30 June 1999.  ARPERSCOM recommended that the applicant’s date of rank be changed to 23 January 2000.

10.  The advisory opinion was forwarded to the applicant with no response.

11.  The Reserve Officer Personnel Management Act (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, the MYIG for Reserve major in order to be eligible for promotion to lieutenant colonel 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/she completes the maximum service.  ROPMA further specifies that selected Individual Ready Reserve (IRR) officers do not have to be in a higher grade position at the time of promotion on their maximum time in grade, and that other than IRR officers must occupy the higher position for promotion or transfer to an IRR status.

12.  Title 10, United States Code, chapter 1405, provides for the promotion of officers by an RCSB at any time before their MYIG.

13.  Title 10, United States Code, section 143802(c)(2) states that except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances in the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion.

CONCLUSIONS:

1.  The applicant is entitled to adjustment to his DOR for LTC to 23 January 2000.  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 board’s approval should have occurred prior to  
23 January 2000, and the applicant would have been promoted with a DOR of 
23 January 2000 his MYIG.

3.  Notwithstanding the delay, the effective date of his promotion should remain as 12 April 2000, the date the President actually approved the board and as shown on the promotion memorandum.  Therefore, the applicant is not authorized back pay in accordance with statutory provisions.

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 the individual concerned was promoted to LTC effective 
12 April 2000 with a DOR of 23 January 2000.

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

BOARD VOTE:  

__FNE___  __MKP__  __MHM_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Fred N. Eichorn          
		        CHAIRPERSON

INDEX

CASE ID	AR2000045542	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010215	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.