PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            26 August 2001
	DOCKET NUMBER:   AR2001056548

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas Baxter		Member	
	Mr. John T. Meixell		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 (DOR) and effective date for promotion to the rank of major be changed from 3 January 2000 to 14 August 1999, with entitlement to all back pay and allowances.

3.  The applicant states, in effect, that he should have been promoted to the rank of major on 14 August 1999 based on the maximum years in grade (MYIG) of 7 years.  However, because the promotion authority failed to convene the promotion selection board far enough in advance to ensure that officers were promoted on time, the promotion selection list was not signed by the President until 3 January 2000.  He further states that the delay in his promotion creates a hardship for him and it violates the intent of the Reserve Officer Personnel Management Act (ROPMA).

4.  The applicant’s military records show he was commissioned a 2nd Lieutenant (2LT) in the Military Police Corps of the United States Army Reserve on 9 May 1987.  On 15 August 1992, he was promoted to the rank of Captain (CPT).  He is currently serving in an Active Guard/Reserve (AGR) status on active duty at the Army Reserve Personnel Command (ARPERSCOM) in St. Louis, Missouri.   

5.  The applicant was considered for and selected for promotion by the 1999 Reserve Component (RC) MAJ Army Promotion List (APL) board.  This board convened on 2 March 1999 and the resultant selection list was approved and signed by the President on 3 January 2000.  

6.  On 14 January 2000, the Army Reserve Personnel Command (ARPERSCOM) published the results of the 1999 RC MAJ APL board.  The applicant’s name was included on this list and he was promoted to MAJ accordingly, effective 3 January 2000, which was the date the list was approved and signed by the President. 

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) 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 officers 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 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, 15 August 1992, that his DOR to MAJ should be established as 14 August 1999, which also should be established as his PED for consideration to the next higher grade.  This conclusion is based on the legal provisions established in 10 USC 14304, which establishes the MYIG for promotion to MAJ as 7 years and, in effect, that an RC officer who is selected for promotion to MAJ, if not promoted sooner, shall be promoted not later than the date they reach their MYIG.  

2.  Although the Board found a legal basis to support adjusting the applicant’s DOR and concluded that this action would be appropriate, this does not, by law and regulation, entitle the applicant 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 that the DOR to MAJ and PED of the individual concerned is 14 August 1999. 

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

BOARD VOTE:  

____tb __  ___jm___  ___jh ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______June Hajjar  _____
		        CHAIRPERSON

INDEX

CASE ID	AR2001056548	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  315	131.0500/DOR	
2.  314	131.0400/E/DATE	
3.		
4.		
5.		
6.