PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            1 March 2001
	DOCKET NUMBER:   AR2000048449

	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. Joseph A. Adriance		Analyst	

	The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Curtis L. Greenway		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, in effect, that his date of rank (DOR) to major (MAJ) be changed to 31 December 1999 based on his promotion eligibility date (PED) to that grade.  

3.  The applicant states, in effect, that his DOR of 19 July 2000 is erroneous as a result of the maximum years in grade (MYIG) criteria of the law as established by the Reserve Officer Personnel Management Act (ROPMA) and codified in Army regulations.  He states that his DOR to captain (CPT) was 1 January 1993, which should have established his PED to MAJ as 31 December 1999 based on the 7 year MYIG promotion criteria for Reserve Component (RC) promotion from CPT to MAJ.

4.  The applicant’s military records show that on 4 September 1988 he was commissioned a 2nd lieutenant (2LT) in the United States Army Reserve (USAR). He was promoted to the rank of CPT on 1 January 1993, MAJ on 19 July 2000, and is currently serving on active duty in an Active/Guard Reserve (AGR) status. 

5.  The applicant was considered for and selected for promotion by the Fiscal Year (FY) 2000 Reserve Component (RC) MAJ Army Promotion List (APL) board.  The resultant promotion selection list was approved and signed by the President on 19 July 2000.  On 10 August 2000, a promotion memorandum was published by the Army Reserve Personnel Command (ARPERSCOM), which promoted him to the rank of MAJ, effective 19 July 2000, and this date was also established as his DOR to MAJ and PED to the next higher grade. 

6.  In connection with the processing of this case, an advisory opinion was requested of and received from ARPERSCOM, dated 26 December 1999.  In this opinion, promotion officials recommended approval of the applicant’s DOR change request.  They opined that because the applicant met the MYIG requirement on 31 December 1999 and given he was filling a position in the higher grade on that date, his DOR should be changed to 31 December 1999.  A copy of this advisory opinion was provided the applicant on 31 January 2000 to provide him an opportunity to comment, to date he has not responded.  

7.  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 (ARNGUS) and the commissioned and warrant officers of the USAR.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the years required in the lower grade (MYIG) requirement for promotion to MAJ is 7 years.

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

9.  Title 10 of the United States Code, section 14304 (10 USC 14304) provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law.  Paragraph (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 MYIG 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.  This provision of the law establishes the MYIG for CPT going to MAJ as 7 years. 

10.  Paragraph (b) of 10 USC 14304 states, in effect, that an RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list 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 on which the officer completes the MYIG specified in this law. 

11.  A separate provision of the law, 10 USC 12203 establishes, in effect, that 
RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President.  It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

CONCLUSIONS:

1.  The Board concludes, based on the applicant’s DOR to CPT of 1 January 1993, that his DOR to MAJ should be 31 December 1999, which also should be established as his PED for consideration to the next higher grade.  By law, an 
RC officer who is selected for promotion to MAJ, if not promoted sooner, will be promoted not later than the date they reach their MYIG as a CPT of 7 years. 

2.  Although the Board finds a legal basis to support adjusting the applicant’s DOR and PED and concludes that this action would be appropriate, this does not, by law and regulation, entitle the applicant to a change in the effective date of his promotion to MAJ or to any additional back pay or allowances.  

3.  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 DOR to MAJ and PED to the next higher grade of the individual concerned is 31 December 1999.

2.  That no change to the effective date of his promotion be made and no back pay and allowance entitlement be bestowed upon the individual concerned as a result of this DOR correction.

BOARD VOTE:  

__jhk____  __clg____  ___rtd __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John H. Kern______
		        CHAIRPERSON

INDEX

CASE ID	AR2000048449	
SUFFIX		
RECON		
DATE BOARDED	2001/03/01	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  21	102.0700	
2.		
3.		
4.		
5.		
6.