PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  2 August 2001
	DOCKET NUMBER:  AR2001053477

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Barbara J. Ellis		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 effective date for promotion to major be corrected from 19 October 2000 to 27 August 1997, the date established by a 30 March 1999 Department of the Army Special Selection Board (SSB) that selected him for promotion based on the Calendar Year 1997 (CY97) promotion board criteria.  He also request’s pay and allowances for the period during which he was erroneously discharged, 1 March 1998 through 23 April 2000.

3.  The applicant states, in effect, that his 19 October 2000 promotion orders deny him the pay and allowances he should have been provided based on the promotion effective date directed by the SSB, 27 August 1997.

4.  The applicant’s military records show that he was a captain in the New Mexico Army National Guard (NMARNG) serving in a major’s position, the S4 Logistics Officer position in the 3rd Battalion, 200th Air Defense Artillery Brigade, when he was discharged on 1 March 1998 for twice non-selection for promotion to major.  It was demonstrated that there was an error in the applicant’s file.  He was reconsidered for promotion under the CY97 promotion criteria by a SSB that adjourned on 30 March 1999.  The SSB recommended that the applicant be promoted to the rank of major with a promotion eligibility date of 27 August 1997. On 16 February 2000, the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command (PERSCOM), St. Louis, notified the Commander, Headquarters, State of New Mexico Department of Military Affairs, Military Division, by memorandum that the SSB had selected the applicant for promotion and recommended that his discharge order be revoked.  The PERSCOM memorandum erroneously stated a promotion eligibility date of 
27 March 1997 which should have been 27 August 1997.  The enclosed PERSCOM promotion consideration memorandum correctly stated the date of rank (promotion eligibility date) as 27 August 1997.

5.  On 24 April 2000, the NMARNG published orders 115-012 revoking the applicant’s 1 March 1998 discharge and placed him back on duty in a major’s position, the Quality Coordinator position in the Headquarters, State Area Command (STARC), NMARNG.  On 21 September 2000, the State of New Mexico Department of Military Affairs, Military Division, published orders 265-040 promoting the applicant to the rank of major effective 21 September 2000.  These orders state in additional instructions b, “Effective date of promotion cited on this order will be concurrent with the effective date of federal recognition in the ARNGUS (Army National Guard of the United States) when granted by Chief, NGB (National Guard Bureau).”  On 19 October 2000, the NGB published orders 189AR announcing federal recognition of the applicant effective 19 October 2000.  Also on 19 October 2000, the NGB published a memorandum, subject: Promotion as a Reserve Commissioned Officer of the Army, showing the applicant’s promotion effective date as 19 October 2000 and his date of rank (promotion eligibility date) as 27 March 1997.

6.  A PERSCOM memorandum dated 6 October 1997; subject: Release Date of the Major, Army Promotion List (APL) Selection Board; states in paragraph 2B, that the approval date for the CY97 major promotion board was 27 August 1997.

7.  The NGB Personnel Division provided an advisory opinion that the applicant is entitled to be promoted to the rank of major effective 27 March 1997 (which should read 27 August 1997) and should be compensated with all back pay and allowances that he would have earned if he had not be erroneously non selected for promotion and discharged.  The applicant concurred with this opinion.

CONCLUSIONS:

1.  In accordance with the CY97 Army Promotion List (APL) Selection Board for the rank of major, the correct effective date for promotion is 27 August 1997, the approval date of the promotion board selection list.  The applicant was selected for promotion by a SSB under the CY97 selection board criteria.  The applicant had been serving in a major’s position on 27 August 1997.  Therefore the applicant’s correct promotion effective date for promotion to major is 27 August 1997, not 27 March 1997 or 19 October 2000.  Accordingly, all promotion documents and orders and federal recognition should be corrected to show the promotion effective date and the federal recognition date to be 27 August 1997.

2.  The applicant was unjustly discharged from the ARNG on 1 March 1998 due to erroneously being non-selected for promotion to major.  He should be provided pay and allowances at the rank of major beginning 27 August 1997.  He should be credited for pay and allowance and retirement points and paid for 4 Unit Training Assemblies (UTA) a month (26 months) and 15 days Annual Training (AT) per fiscal year (one each for FY 98 and FY99) for the period 1 March 1998 through 23 April 2000.

3.  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 for the individual concerned by:

	a.  showing on all promotion and federal recognition documents that his effective date for promotion to major and federal recognition is 27 August 1997 with a date of rank (Promotion Eligibility Date) for major of 27 August 1997;

	b.  giving him retirement point credit and pay as a major for 4 UTAs a month (26 months) and 15 days AT per fiscal year (one each for FY 98 and FY99) for the period 1 March 1998 through 23 April 2000; and

	c.  providing him adjusted pay as a major from 27 August 1997 through 
18 October 2000.

BOARD VOTE:  

__rw___  __ji___  ___be____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond J. Wagner____
		        CHAIRPERSON

INDEX

CASE ID	AR2001053477	
SUFFIX		
RECON		
DATE BOARDED	20010813	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	102.07 – Date of Rank	
2.		
3.		
4.		
5.		
6.