PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  22 March 2001
	DOCKET NUMBER:  AR2000048423

	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:

	Ms. Shirley Powell		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. John P. Infante		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 to his effective and date of rank (DOR) for major.

3.  The applicant states, in effect, that his date of rank for major should be adjusted in accordance with Title 10, United States Code, Section 14304, and his promotion to major should have been made on or before his completion of 7 years in the rank of captain.  He submits a copy of his promotion memorandums dated 28 July 1992 and 14 January 2000 in support of his application.

4.  The applicant’s military records show that he was promoted in the Reserve to captain on 20 May 1992.  Based on the required 7 years time in grade, his maximum years of service in grade (MYIG) date for major was 19 May 1999.

5.  He was assigned to a major position effective 2 March 1998.

6.  He 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 board on 3 January 2000.   The processing of the board results was administratively delayed.  Based on normal processing, they should have been approved approximately 100 days after the respective recess dates.

7.  A promotion memorandum dated 14 January 2000 was issued to him showing 3 January 2000 as his effective and date of rank for major.

8.  Under current policy, the applicant was eligible for promotion consideration by an RCSB convening on 24 March 1998 and recessed on 29 April 1998.

9.  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.  ROPMA provides that in order to be eligible for promotion to major the MYIG for a captain is 7 years, and that an officer selected for the first time for promotion to the next higher grade may be promoted on or before the date that he/she completed the maximum service.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade.

10.  Title 10, United States 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.  The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant was promoted to captain on 20 May 1992.  Promotion to major requires 7 years time in grade; therefore, his promotion eligibility date was 19 May 1999.  He was considered for promotion to major by the 1999 RCSB and recommended for promotion.  Under ROPMA, an officer cannot be promoted until the President approves the board.  The board was approved on 3 January 2000 and the results were released on 12 January 2000.  Officer Management Division verified the applicant went into the position requiring the higher grade on 2 March 1998.  He was issued a promotion memorandum on 14 January 2000 with a date of rank of 3 January 2000 since this was the day the President approved the board.  It was recommended that his request be denied.

12.  The opinion was forwarded to the applicant for rebuttal on 12 December 2000.  In his rebuttal dated 5 January 2001, he states that he interpreted paragraph 2 of the opinion to mean that promotion orders cannot be published prior to the President’s approval.  However, this does not imply that the DOR or effective date will reflect the date the President approves the list.  Therefore, he requests his DOR and effective date of promotion be changed.

CONCLUSIONS:

1.  The applicant is entitled to adjustment of his date of rank for major to 19 May 1999, the date he completed his MYIG.  His date of rank should be based upon completion of the required 7 years time in the lower grade.

2.  The processing of the promotion board results was administratively delayed through no fault of the applicant, and he should not be penalized for the delay.

3.  Notwithstanding the delay, the effective date of his promotion should remain as 3 January 2000, the date the President approved the board.

4.  The applicant is not entitled to back pay and allowances.  Title 10, USC does not authorize pay and allowances when an officer’s date of rank is adjusted to a date earlier than the officer’s actual date of promotion.

5.  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 major effective 3 January 2000 with a date of rank of 19 May 1999.

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

BOARD VOTE:  

__sp___  ___rs___  ___ji___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Shirley Powell____
		        CHAIRPERSON

INDEX

CASE ID	AR2000048423	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010322	
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.		
3.		
4.		
5.		
6.