PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            27 March 2001
	DOCKET NUMBER:    AR2000048153

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Gail J. Wire		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 corrected to his promotion eligibility date of 31 July 1999 and that he be paid all back pay and allowances resulting from this correction.

3.  The applicant states that the effective date of his promotion to major was not backdated to his promotion eligibility date.  He states that the release of the 1999 Reserve Component, Major, Army Promotion List was delayed for reasons unknown and that this will affect subsequent promotion to the next higher grade.

4.  The applicant’s military records show that he was promoted to captain (pay grade O-3) in the U.S. Army Reserve effective 31 July 1992 and is currently serving in an Army Reserve Troop Program Unit in the rank of major (pay grade O-4).

5.  The applicant was selected for promotion to major by the 1999 Reserve Component, Major, Army Promotion List, Promotion Selection Board.  Evidence of record shows that the applicant began serving in a position authorized an officer in the rank of major effective 19 August 1996. 

6.  Headquarters, United States Army Special Operations Command memorandum, dated 4 February 2000, announced the applicant’s promotion to major in the U.S. Army Reserve effective 3 January 2000.  This memorandum stated:  “Your promotion, pay and allowances, and time in grade of promotion to the next grade will be effective on the date shown after A, above.”  The date shown after A, above, on this memorandum is “000103” [3 January 2000].

7.  The applicant provided an extract of Army Regulation 135-155, (Promotion of Commissioned Officers and Warrant Officers other Than General Officers), effective 1 September 1994.  Paragraph 4-15 (Promotion eligibility date and date of rank) is highlighted.  This paragraph, as summarized, states that the promotion eligibility date is the date that an officer meets the eligibility criteria for promotion to the next higher grade.  Further, date of rank is defined as the date the member actually or constructively was appointed to a specific grade and it is the date used to determine the relative seniority for officers holding the same grade.  This paragraph concludes with the statement that the officer’s promotion eligibility date will become the officer’s date of rank upon promotion and the date of rank will be used to establish the promotion eligibility date to the next higher grade.

8.  In the processing of this case, an advisory opinion was provided by the Chief of Special Actions, Office of Reserve Components Promotions.  By letter dated 4 January 2001, the applicant was notified that he had 30 days to submit matters in rebuttal to this opinion; however, the applicant has not responded in OVER 60 days.

9.  The advisory opinion points out that the applicant was promoted to captain effective 31 July 1992 and that promotion to major requires seven years in grade as a captain.  As a result, the applicant’s promotion eligibility date to major is 30 July 1999.  The opinion further states that, under the Reserve Officers Personnel Management Act, an officer cannot be promoted until the promotion board results are approved by the President, that the President approved the board results on 3 January 2000 and that the applicant was issued a memorandum on 4 February 2000 promoting him with a date of rank of 3 January 2000 which is the date the President approved the promotion board results.  In conclusion, the Chief of Special Actions recommended disapproval of the applicant’s request.

10.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and the commissioned and warrant officers of the U.S. Army Reserve.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the maximum years of service required in the lower grade for promotion to major is seven years and to lieutenant colonel is seven years.

11. Title 10, United States Code, Section 14308 (c) (2) states:  “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.”

12.  Section III (Dates of Promotion) of Army Regulation 135-155 provides the procedures for computing promotion effective dates of all reserve component officers.  It states, in pertinent part, that, unless otherwise entitled by law, antedating of either the effective date of promotion or the promotion eligibility date will not entitle a reserve component officer to increased pay and allowances. However, it does establish that the promotion eligibility date and date of rank is the date the officer meets the eligibility criteria for promotion to the next higher grade.  Further, it states that an officer’s promotion eligibility date will become his date of rank upon promotion and this date will be used to establish the relative seniority for officer’s holding the same rank.  Finally, it states that date of rank will be used to establish the officer’s promotion eligibility date to the next higher grade. 

13.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the maximum years of service in grade 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 table in subsection (a) establishes the maximum years of service in grade for a captain to be promoted to major as seven years and for a major to be promoted to lieutenant colonel as seven years. 

14.  Subsection (b) of Title 10 United States Code, Section 14304 states:  “An officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted without regard to the existence of a vacancy, on the date which the officer completes maximum years of service in grade specified in subsection (a).

15.  Title 10, United States Code, Section 12203 (a) states:  “Appointments of reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officer, shall be made by the President alone.”  Subsequently, in a 22 April 1997 legal opinion on effective dates of promotion for reserve officers under the Reserve Officers Personnel Management Act, the Chief of the Military Personnel Law Branch, Office of the Judge Advocate General, opined that the effective date of promotion of reserve component officers may not predate the approval of the promotion board results by the President.

CONCLUSIONS:

1.  The applicant’s promotion eligibility date to major was 30 July 1999 based on seven years from the date he was promoted to captain.

2.  The applicant was selected for advancement to major by the 1999 Reserve Component, Major, Army Promotion List, Promotion Selection Board; however, the President did not approve the board results until 3 January 2000.

3.  The applicant’s promotion was announced on 4 February 2000 with promotion, pay and allowances, and time in grade for promotion to the next grade effective 3 January 2000, the same date the President approved the promotion selection board results.

4.  Notwithstanding the advisory opinion by the Office of Reserve Components Promotions, law provides that a reserve component officer who is selected for promotion to major, if not promoted sooner, will be promoted not later than the date he or she reaches the maximum years of service in grade of seven years as a captain.  Therefore, the Board has determined that the applicant is entitled to adjustment of his date of rank to major.  Further, the Board has determined, based on law and regulation currently in effect, that the applicant’s date of rank is 30 July 1999 and that this same date is also the starting date for determining the applicant’s promotion eligibility date to lieutenant colonel.

5.  Based on adjustment of the applicant’s date of rank to 30 July 1999, the Board has determined, based on law and regulation currently in effect, that the applicant’s promotion eligibility date to lieutenant colonel is 29 July 2006.

6.  The Board noted the applicant’s request for adjustment of the actual date of his promotion with payment of back pay and allowances.  However, the Board finds that the actual date of the applicant’s promotion may not precede 3 January 2000 which is the date on which the President approved the 1999 Reserve Component, Major, Army Promotion List, Promotion Selection Board results.  Further, law and regulation provide that antedating of either the effective date of promotion or the promotion eligibility date will not entitle a reserve component officer to increased pay and allowances.  Therefore, the applicant’s actual promotion date cannot be adjusted to any date prior to 3 January 2000 and he cannot be paid any back pay and allowances. 

7.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the date of rank of the individual concerned is 30 July 1999 and that his promotion eligibility date to lieutenant colonel is 29 July 2006.

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

BOARD VOTE:  

__GJW__  __ALR__  __RWA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Mr. Roger W. Able__
		        CHAIRPERSON

INDEX

CASE ID	AR2000048153	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010327	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR. SCHNEIDER	
ISSUES         1.	131.0400.0000	
2.	131.0500.0000	
3.		
4.		
5.		
6.