PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 February 2001                   
	DOCKET NUMBER:   AR2000045801

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 be adjusted to 1 November 1998, his promotion eligibility date (PED).

3.  The applicant states that Army Regulation 135-155, paragraph 4-19d states that Active Guard/Reserve (AGR) officers will be promoted effective on their PED provided they are attached to a position in the higher grade.  He was promoted to Major effective 3 January 2000 instead of on his PED due to the late release of the promotion list.

4.  The applicant's military records show that he entered active duty as a second lieutenant on 26 September 1986.  He was promoted to Captain on 1 May 1991. He was released from active duty on 31 October 1998.  

5.  On 1 November 1998, the applicant was voluntarily ordered to active duty     in an AGR status.  He attended AGR training at Fort McCoy, WI from                  1 – 13 November 1998 and was assigned to Fort McPherson, GA in an 0-4 position on 13 November 1998.

6.  In the processing of this case an advisory opinion was obtained from the Promotion and Notifications Branch, Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office noted that the applicant’s PED was 30 April 1998.  He was considered and selected for promotion by the 1999 Reserve Component Major selection board.  The President of the United States approved the results of the selection board with his signature on               3 January 2000.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

7.  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.

8.  Army Regulation 135-155, effective 1 September 1994 provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard of the United States and the U. S. Army Reserve.  Paragraph    4-19 was superseded by the Reserve Officer Personnel Management Act (ROPMA) in 1996.  Until the regulation is updated, effective promotion dates are now governed by Title 10, U. S. code, chapter 1405.  

9.  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 major is 7 years.

10.  Title 10, U. S. Code, section 14308(c)(2) states that except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion.

11.  In similar cases the Office of the Judge Advocate General has previously opined that USAR AGR officers, who are serving in positions requiring the grade to which they will be promoted, will have an effective date and date of rank in the higher grade as the date of issuance of the promotion memorandum.  Additionally, the issuance of the promotion memorandum may not precede the approval by the President of the promotion board results.  The previous authority of Title 10, U. S. code, section 3363(d) to antedate the effective dates of reserve officer promotions was repealed without replacement by ROPMA.

CONCLUSIONS:

1.  The provisions of law state that an officer cannot be promoted earlier than the date the President approves the results of the selection board.  In the applicant’s case, this is 3 January 2000.

2.  However, the provisions of law also state that an officer will be considered for promotion well in advance, so that if recommended, he would be promoted on or before the date that he completes the maximum years of service, which in the applicant’s case is 7 years.  The applicant completed 7 years as a captain on      30 April 1998.  However, he was still on active duty on this date.  He was released from active duty on 31 October 1998, was voluntarily ordered to active duty in an AGR status on 1 November 1998, and was assigned to an  0-4 position on 13 November 1998.

3.  Notwithstanding the provisions of law that limit the effective date of promotion based on the date the President signs the promotion list, fairness requires that the officer’s records be corrected to show his date of rank to be the date he completed the maximum years of service or the date he was assigned to an  AGR 0-4 position, whichever is later.  In the applicant’s case, that would be        13 November 1998.  The Board concludes that there is no unfairness in not correcting the effective date of his promotion as all other officers selected for promotion by that board will also have the same effective date.

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 that the applicant was promoted to Major as a Reserve commissioned officer of the Army in an Active Guard/Reserve status effective     3 January 2000 with a date of rank of 13 November 1998.

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

BOARD VOTE:  

__lls___  __jea___  __bjl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045801	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.01	
2.		
3.		
4.		
5.		
6.