PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  15 March 2001
	DOCKET NUMBER:  AR2000047352

	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. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Richard T. Dunbar		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 adjustment of his date of rank (DOR) for captain to 25 June 1997.

3.  The applicant states, in effect, that his DOR should be adjusted to a date that reflects a maximum of 7 combined years of service as a lieutenant.  He submits copies of his promotion qualification statement, service school academic evaluation report, college transcript, and promotion memorandums in support of his request.

4.  He was appointed in the Army Reserve from ROTC as a second lieutenant effective 25 May 1990.  He was promoted to first lieutenant (1LT) effective 30 May 1993.  His promotion eligibility date (PED) for captain was 25 June 1997.

5.  He was assigned to a captain position effective 20 April 1997.

6.  He was considered and not selected for promotion to captain by the 1997 Reserve Components Selection Board (RCSB).  This board convened on 13 November 1997 and was recessed on 12 December 1997.  Had he been selected he would have been promoted to captain with a DOR of 25 June 1997.

7.  His PED was adjusted to 25 June 1998.

8.  He was considered and selected for promotion to captain by the 1998 RCSB, which recessed on 11 December 1998.

9.  A Promotion Memorandum dated 15 December 1999 shows he was promoted to captain with a date of rank of 25 June 1998.

10.  The applicant’s records contained material error when reviewed by the 1997 RCSB.

11.  Based on the material error in his records he was reconsidered and selected for promotion to captain under the 1997 criteria by a special selection board (SSB), which convened on 11 December 1998.  

12.  The applicant completed the required military and civilian education for promotion prior to being promoted to captain and prior to his PED, the date he completed the required maximum years of service in grade (MYIG) for promotion purposes.  The required position vacancy, active status, medical qualification, 

and security clearance have been verified, as noted by appropriate commanders and/or personnel managers on the Promotion Qualification Statement provided with the application.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that officers selected by an SSB are eligible for the same DOR that they would have received by the original board in which the error occurred. 

14.  This regulation also specifies that upon a non-selection by a promotion board an individual's PED will be adjusted by 1 year, accordingly; and that individuals will receive mandatory promotion consideration prior to their PED's so that, if selected, they may be promoted on their future PED.

15.  The Reserve Officer Personnel Management Act (ROPMA) was enacted effective 1 October 1996.  Among many other things, it required that second lieutenants (2LT’s) serve a MYIG of 2 years before promotion to 1LT, and 1LT’s serve a MYIG of 5 years before promotion to captain.  The Reserve Officer Personnel Act in effect prior to ROPMA required completion of 3 years as a 2LT and 4 years as a 1LT before promotion to captain.  It also provides for early promotion upon approval of the promotion board results when in a higher graded position.

16.  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.

17.  The ROPMA promotion boards for captains 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 100 days after the respective recess dates.

18.  On 5 September 2000, an official from the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) advised a staff member of the Board that an officer selected by an SSB is eligible for Phase I consideration under the 1LT to captain adjusted date of rank program under the following conditions:  The Army policy delayed the officer’s first-time mandatory consideration by the November 1996 board until the November 1997 board; the 

officer failed selection by the November 1997 board; the officer was selected by the November 1998 board; and an SSB convened under the November 1997 board criteria selected the officer.

19.  Current promotion policy also requires completion of the necessary military education (officer basic course), civilian education (baccalaureate degree), and verification of assignment to a captain position as appropriate.

CONCLUSIONS:

1.  The applicant is entitled to adjustment to his DOR for captain to 25 June 1997 based on his selection by the 1998 SSB under 1997 criteria. 

2.  The Board notes the applicant is otherwise qualified for promotion to captain with an adjusted DOR, as determined by the evidence of record and has met all other prerequisites for promotion.

3.  The ROPMA provisions enacted on 1 October 1996 were not intended to change the statutory requirement then in effect, requiring an individual to serve 7 years, combined, in the ranks of 2LT and 1LT before being promoted to captain.

4.  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 would 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 based on his selection by an SSB under the 1997 criteria, he is entitled to an earlier promotion, DOR, and pay and allowances.

5.  In view of the facts and circumstances surrounding this matter, the interest of justice would best be served by now correcting the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records of the individual concerned be corrected by showing he was promoted to captain with a date of rank of 25 June 1997 and entitled to the pay and allowances in the higher grade on that date.

BOARD VOTE:  

__ew____  ___to___  ___rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Ernest M. Willcher___
		        CHAIRPERSON

INDEX

CASE ID	AR2000047352	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010315	
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.	131.05	
3.		
4.		
5.		
6.