PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 December 2001
	DOCKET NUMBER:   AR2001059639

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Eric N. Andersen		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 her major (MAJ) date of rank (DOR) be adjusted to 1 July 1997, which was her promotion eligibility date (PED).  

3.  The applicant states, in effect, that she was selected for promotion by the 1997 Reserve Component (RC) MAJ Army Promotion List (APL) board, which was published in September 1997.  At the time, she was on active duty in support of Operation Joint Guard and was unable to get promotion orders until she was assigned to the Active Guard/Reserve (AGR) program and her DOR was established as 12 November 1997.  She claims that at the time the promotion board convened she was serving in an authorized MAJ position and her promotion order should have reflected a DOR of 1 July 1997, which under the law was her PED.

4.  The applicant’s military records show that she is currently serving on active duty in an AGR position with the 314th Military Intelligence Battalion, Detroit, Michigan.  It also confirms that she was promoted to the rank of captain (CPT) with a DOR of 1 July 1990, which would have established her PED for MAJ as 
30 June 1997, based on her having attained the 7 years Maximum Years In Grade (MYIG) requirement established by law. 

5.  The applicant was considered for and selected for promotion by the 
1997 Reserve Component (RC) MAJ Army Promotion List (APL) board.  A promotion memorandum pertaining to the applicant, dated 12 November 1997, published by the Army Reserve Personnel Command (ARPERSCOM), promoted her to the rank of MAJ, effective 12 November 1997, which was also the date established as her DOR to MAJ.

6.  In connection with the processing of this case, an advisory opinion was requested of and received from ARPERSCOM, dated 15 August 2001.  In it, promotion officials opined, in pertinent part, that based on the 7 year MYIG requirement for promotion to MAJ, the applicant’s MAJ DOR should have been 30 June 1997.  It also indicated that the applicant’s promotion effective date should have been established as 11 November 1997, the date she was assigned to an authorized MAJ position.  

7.  On 14 September 2001, the applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to respond and to date, she has failed to reply.

8.  Title 10 of the United States Code, section 14304 (10 USC 1434) 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. 

9.  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. 

CONCLUSIONS:

1.  The legal provisions of 10 USC 14304 establish 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.  Therefore, the Board concludes, since the applicant attained her MYIG as a CPT and her PED to MAJ on 30 June 1997, her MAJ DOR should be changed to this date, which should also be used in establishing her PED for consideration for promotion to the next higher grade.

2.  In addition, the Board concurs with the ARPERSCOM opinion that her promotion effective date should have been 11 November 1997, based on her being assigned to a authorized MAJ position on that date.  Therefore, the Board also concludes it would be appropriate to adjust her promotion effective date to 11 November 1997, and to provide her the 1 day of back pay and allowances due as a result. 

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 by showing that MAJ DOR of the individual concerned is 30 June 1997; that her effective date of promotion to MAJ is 11 November 1997; and by providing her the 1 day of back pay and allowances due as a result. 

BOARD VOTE:  

__JHL__   _ _MKP__  __ENA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    __JoAnn H. Langston__
		        CHAIRPERSON

INDEX

CASE ID	AR2001059639	
SUFFIX		
RECON		
DATE BOARDED	2001/12/04	
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.