PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  6 June 2002
	DOCKET NUMBER:  AR2001061067

	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. Stanley Kelley		Chairperson	
	Mr. Thomas E. O'Shaughnessy		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, in effect, that his date of rank (DOR) and effective date for major be adjusted from 3 January 2000 to 31 July 1998.

3.  The applicant states, in effect, that the Reserve Officer Personnel Management Act (ROPMA), Title 10, U. S. Code (USC), section 14304, requires that an officer recommended for promotion by a selection board the first time the officer is considered, while in or above the promotion zone, and who is placed on an approved promotion list, be promoted not later than their maximum time-in-grade (MTIG) for their present grade.  His DOR for captain was 1 August 1991.  His MTIG as a captain was 31 July 1998.  His current and prior positions were authorized majors.

4.  The applicant’s military records show that he was a U. S. Army Reserve (USAR) captain, with a DOR of 1 August 1991, on active duty from 13 May 1987 through 29 October 1998, when he was honorably released from active duty, by reason of non-selection for permanent promotion by an active duty promotion board, and transferred to a Reserve Troop Program Unit (TPU), the 
311th Combat Support, Corps Support Command (COSCOM).  When he was released from active duty, he was consequently removed from the active duty list and on 30 October 1998, was placed on the Reserve Active-Status List (RASL).  On 1 November 1998, he was placed on Active Guard Reserve (AGR) duty and assigned to Headquarters, Readiness Command, at Fort Jackson, South Carolina, in a mobilization/training officer position authorized a major.

5.  He was considered for promotion to major, USAR, by the 1999 Reserve Components Selection Board (RCSB) and selected for promotion.  The board convened on 2 March 1999, adjourned on 2 April 1999, and the President approved its recommendations on 3 January 2000.  By a U. S. Total Army Personnel Command Memorandum, dated 14 January 2000, the applicant was promoted to major with an effective date and DOR of 3 January 2000.

6.  The ROPMA, a public law under Title 10, USC, enacted by Congress on 
5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers.  The ROPMA law became effective 1 October 1996.  Chapter 1405 (Promotions), section 14304 of the ROPMA law, states that officers on the RASL shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a), a RSCB, far enough in advance of completing a specified maximum years (time) in grade (MTIG), so that if the officer is selected for promotion, the promotion may be effective on or before the date on which the officer will complete the MTIG.  The MTIG for promotion to captain is 5 years as a first lieutenant; for promotion to major is 7 years as a captain; for promotion to lieutenant colonel is 7 years as a major.

7.  Army Regulation 135-155 (Army National Guard and U. S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-21, states, “The effective date and date of promotion, to include officers recommended on a second or subsequent mandatory board, will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer meets maximum TIG, whichever is later.”  Pay and allowances are paid at the new rank based on the effective date.  Time in grade for consideration for promotion to the next higher grade is calculated from the DOR.  Paragraphs 4-11 and 4-15, in pertinent part, state that before an officer who has been recommended for promotion to the next higher grade can be promoted, they must be on the RASL, complete their MTIG, and be assigned to the next higher-grade position in a Reserve Troop Program Unit (TPU) or the Active Guard Reserve (AGR), or be assigned in the Individual Ready Reserve (IRR).  Paragraph 14-21, in pertinent part, states that when an officer does not meet all of the requirements for promotion after being selected for promotion, the effective date will be no earlier than the date all the qualifications are met.

8.  The Office of Promotions, Reserve Components, U. S. Total Army Personnel Command, provided an opinion that the applicant was promoted to major on the date that his promotion board recommendations were approved, 3 January 2000, according to ROPMA.  The applicant has been provided an opportunity to rebut this opinion but no rebuttal has been received.

9.  The Judge Advocate General (TJAG) rendered a legal opinion for the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) on 22 April 1997, that stated in paragraph 5, “If an officer is not considered for promotion sufficiently before the officer completes the service prescribed in 10 USC, section 14304(a), resulting in an effective date of promotion and date of rank that is beyond the officer’s maximum time-in-grade, and the officer has not been previously non-selected by a board convened under 10 USC, section 14101(a), the officer may petition the ABCMR for an adjustment of his or her date of rank to the date of the officer’s maximum time-in-grade (MTIG).”

CONCLUSIONS:

1.  According to Title 10, USC, section 14304, Reserve officers on the RASL should be considered for promotion so that if selected, they can be promoted to the next higher grade on the date that they reach their MTIG in their current grade.  The TJAG rendered a legal opinion that if the promotion effective date is beyond that date, an officer may petition the ABCMR to adjust their DOR to the MTIG date in accordance with the provisions of the law.

2.  The applicant’s DOR for captain was 1 August 1991, which made his 7 years service MTIG as a captain, 31 July 1998.  However, on that date, the applicant 
was on active duty and on the active duty list and was therefore not eligible for promotion in the Reserve under ROPMA.  He became eligible for promotion consideration under ROPMA on 30 October 1998, when he was placed on the RASL as a result of being released from active duty.  However, there is no evidence in the record, nor has the applicant provided any, to show that on that date he was assigned in a position authorized the rank of major.  The record does show that he was assigned to an AGR position authorized a major on 1 November 1998.  Thus, on 1 November 1998, under ROPMA, he was eligible for promotion to major, USAR.  He was selected for promotion the first time he was considered by a RCSB and, according to the law, should be promoted to the next higher grade (major) with a DOR on the date of his MTIG or as soon thereafter as he met all promotion requirements.  Therefore, as a matter of justice, his DOR for major should be adjusted from 3 January 2000 to 1 November 1998, the date he met all requirements for promotion.  However, such adjustment does not change the effective date of promotion and does not entitle the officer to additional pay and 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 for the individual concerned by showing that he was promoted to major, USAR, effective 3 January 2000, with a DOR of 1 November 1998, with no further entitlement to additional pay or allowances based on these adjustments.

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

BOARD VOTE:  

__sk____  ___to__  ___jm_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Stanley Kelley__
		        CHAIRPERSON

INDEX

CASE ID	AR2001061067	
SUFFIX		
RECON		
DATE BOARDED	20020606	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PART	
REVIEW AUTHORITY		
ISSUES         1.	131 - Promotion	
2.		
3.		
4.		
5.		
6.