PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            7 December 2000
	DOCKET NUMBER:   AR2000047269

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. John P. Infante		Member	
	Mr. Ernest W. 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 for major be adjusted to 1 August 1999.

3.  The applicant states that the Reserve Officer Personnel Management Act (ROPMA) requires that officers selected for promotion for the first time by a mandatory promotion board to the grade of major be promoted not later than their maximum time in grade date for their present grade.

4.  The applicant’s military records show that he was a graduate of the U.S. Military Academy at West Point, New York.  He was commissioned a second lieutenant and ordered to active duty on 25 May 1988.  He was promoted to first lieutenant effective 25 May 1990 and captain effective 1 August 1992.  On 1 January 1995, he was honorably discharged from active duty under the provisions of Army Regulation 635-120, chapter 3, for miscellaneous reasons and was appointed a Reserve officer (captain) in the USAR on 1 January 1995. 

5.  Based on the required 7 years time in grade his maximum years of service in grade (MYIG) date for promotion to major was 31 July 1999.

6.  The applicant was considered and selected for promotion to major by the 1999 Reserve Components Selection Board (RCSB) that convened on 2 March 1999.  The President approved the results of the board on 3 January 2000.  The processing time for this promotion board report exceeded normal processing standards.

7.  In the processing of this case, a staff advisory opinion was obtained from the U.S. Army Reserve Personnel Command.  The opinion points out that ROPMA became effective 1 October 1996 and that a promotion list does not exist until the President approves the board’s recommendations in accordance with Title 10 U.S. Code, Chapter 1405, Section 14308.  Further, the effective date of promotion and date of rank will be the date the officer is assigned to a higher graded position provided he or she meets all other qualifications for promotion.  The Act further specifies that the effective date of promotion may not predate the approval, by the President, of the board results.  The opinion states that the applicant was considered and recommended for promotion by the 1999 Major APL Board which was approved on 3 January 2000.  Under pre-ROPMA criteria, the applicant’s date of rank would otherwise be 1 August 1999 [sic].  However, under ROPMA criteria, because the applicant met all qualifications for promotion and was in a higher grade on the day the 1999 Major APL was approved, his date of rank is 3 January 2000, the adjourning date of the board. 

8.  On 13 November 2000 the advisory opinion was furnished to the applicant for his review and possible rebuttal.  He did not respond. 

9.  On 5 December 2000, a staff member of the ABCMR requested that the U.S. Army Reserve Personnel Command identify the date that the applicant was assigned to a position requiring the grade of major.  The Military Personnel Actions Technician, who prepared the 26 October 2000 advisory opinion, responded on 5 December that the applicant was assigned to a position requiring the grade of major on 18 August 1999.

10.  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, the MYIG for a Reserve captain in order to be eligible for promotion to major 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 that 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 MYIG date, and the other than IRR officers must occupy the higher position for promotion or transfer to an IRR status.  

11.  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. 

12.  The Acting Assistant Secretary of Defense for Force Management Policy provided guidance on 2 April 1999 regarding the time for processing reports of promotion boards.  This guidance was predicated on language by the Senate Armed Service Committee in its report on the Defense Authorization Act for Fiscal Year 1999.  This language required a report from the Secretaries of the Military Departments on all promotion board reports when the time from signature by the board members to approval exceeds 100 days.  The Acting Assistant Secretary of Defense also provided milestones for promotion board reports to reach the Office of the Secretary of Defense in order to meet the 100 day standard established by Congress.  As a result, it is apparent that the established standard for processing promotion lists is to obtain approval of promotion lists within 100 days.

CONCLUSIONS:

1.  The applicant was eligible for promotion to major on 31 July 1999 (his MYIG date for promotion to major) based on completing the required 7 years time in grade.  However, the applicant did not occupy a position requiring the grade of major (pay grade O-4) until 18 August 1999.

2.  The Board noted the Congressional intent and Department of Defense guidance regarding timely processing of promotion board reports.

3.  Notwithstanding the advisory opinion by U.S. Army Reserve Personnel Command, the Board determined that the Department failed to meet the promotion list approval standard and, as a result, the applicant was disadvantaged in that his promotion to major was delayed.

4.  Based on the foregoing, the Board determined that the promotion list in this case should have been approved on or about 15 June 1999 (approximately 100 days after the adjournment of the 1999 RCSB for promotion to major) had the administrative delay not occurred.

5.  The applicant was eligible for and would have been promoted on 18 August 1999 had not the administrative delay occurred.  Therefore, the applicant is entitled to adjustment of his date of rank to major effective 18 August 1999 based on his assignment to a major’s position. 

6.  Notwithstanding the delay, the effective date of the applicant’s promotion must remain 3 January 2000 (the date the President actually approved the board results) as required by law.

7.  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 major effective
3 January 2000 with a date of rank of 18 August 1999. 

BOARD VOTE:  

RVO____  JPI____  EWL_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor___
		        CHAIRPERSON

INDEX

CASE ID	AR2000047269	
SUFFIX		
RECON		
DATE BOARDED	20001207	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19950101	
DISCHARGE AUTHORITY	AR 635-120, Chapter 3	
DISCHARGE REASON	Miscellaneous Reasons	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	102.0700	
2.		
3.		
4.		
5.		
6.