MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           4 December 2001   
	DOCKET NUMBER:   AR2001053717

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Eric N. Andersen		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
		 records
	Exhibit B - Military Personnel Records (including
		 advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to correct his military records by authorizing back pay.
 
APPLICANT STATES:  In effect, that two previous cases by the Board authorized back pay and he requests “the same case-by-case, equitable consideration and decision in my behalf.”  He submits copies of AR1999923094 decided by the Board on 14 April 1999 and AR1999016296 decided by the Board on 12 May 1999.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized record of proceedings prepared to reflect the Board's previous consideration of the case (AR1999034156) on 
31 August 2000.

The applicant’s contentions are new argument that requires Board consideration.

The previous record of proceedings stated “In similar cases the office of The Judge Advocate General has previously opined that USAR AGR officers, who are serving in positions requiring the grade to which they will be promoted, will have an effective date of rank in the higher grade as the date of issuance of the promotion memorandum.  Additionally, the issuance of the promotion memorandum may not precede the approval by the President of the promotion board results.  The previous authority to antedate the effective dates of Reserve officer promotions (Title10, USC section 3363 (d) was repealed with the passage of the Reserve Officer Personnel Management Act (ROPMA).”

The 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 was implemented on 1 October 1996.  ROPMA provides for promotion only upon approval of respective promotion board results by the President.

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.”

In similar cases such as this, previously reviewed by the Board just subsequent to the implementation of the ROPMA, the relief recommended included adjustment of the effective dates of promotion as well as the dates of rank.  The staff of the Board, prior to discovery of the impact of the ROPMA concerning promotion effective dates, recommended adjustment of effective dates not provided for by ROPMA.  In those cases, no further adjustments will be made to 

the effective dates granted to those earlier cases.  However, promotion effective date adjustments may not be recommended in future similar cases.  Promotion effective dates in these cases may remain the date of Presidential approval of the promotion board results only with few substantiated exceptions.  Primarily, dates of rank are used for promotion consideration to the next higher grade, and promotion effective dates are used for pay.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Approval of the applicant’s request for an adjustment of his effective date of promotion, and back pay based on actions taken in other similar cases, is not appropriate.  It is noted that the effective date of 29 May 1998 for promotion of the applicant to lieutenant colonel was based on the Presidential approval of the board.  This date remains unchanged.

2.  The Board makes decisions on a case-by–case basis.  Previous decisions do not establish precedents that must be followed in future cases. 

3.  As noted in the original decision the ROPMA ended the entitlement to antedate an effective date of rank.  This panel confirms that the applicant is not entitled to back pay and allowances.  If in applying the provisions or law or regulation to one or more other cases, fairness does not require that every individual be granted identical treatment.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JHL___  __MKP__  __ENA__  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR2001053717	
SUFFIX		
RECON		
DATE BOARDED	20011204	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.