PROCEEDINGS

	IN THE CASE OF:          

	BOARD DATE:               29 January 2002                         
	DOCKET NUMBER:      AR2001061083

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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 to major be adjusted to 1 July 1999.

3.  The applicant states that his date of rank to captain was 1 July 1992.  He entered the Active Guard/Reserve (AGR) Program in January 1999 and was in an 0-4 position when the major’s board convened in March 1999.  In support of his application, he submits assignment orders, amendment orders, and a copy of his Officer Record Brief.

4.  The applicant’s military records show that he served in the Regular Army from 9 October 1985 through 24 February 1988.  He was appointed as a Reserve commissioned officer on 25 February 1988 in the rank of second lieutenant.  He was promoted to captain with an effective date and date of rank of 1 July 1992.  The applicant was released from active duty on 2 January 1999 in the rank of captain.

5.  On 18 January 1999, the applicant was ordered to active duty in the Active Guard/Reserve (AGR) program in the rank of captain.

6.  Based on the required 7 years time in grade his maximum years of service in grade (MYIG) date for promotion to major was 1 July 1999.

7.  The applicant was considered and selected for promotion to major by the 1999 Reserve Components Selection Board (RCSB) that convened on 2 March 1999 and adjourned on 2 April 1999.  The President approved the results of the board on 3 January 2000.  

8.  In the processing of this case, a staff advisory opinion was obtained from the Office of Reserve Components Promotions of the U.S. Total Army Personnel Command.  The opinion points out that seven years in grade as a captain are required for advancement to major and in this case, the applicant reached his maximum year in grade for promotion to major on 1 July 1999.  The opinion further states that he was considered and recommended for promotion by the 1999 Department of the Army Selection Board considering captains for advancement to major.  Based on the Reserve Officers Personnel Management Act (ROPMA), the effective date of promotion for an officer cannot be prior to the date the President of the United States approves the promotion board results.  In this specific case, the Office of Reserve Components Promotions noted that the President approved the board results on 3 January 2000.  The opinion also states that the applicant had been in a major’s position since 3 January 1999 and that the applicant was issued a promotion memorandum on 14 January 2000 showing his date of rank as 3 January 2000.  Based on the forgoing, the advisory opinion recommended disapproval of the applicant’s request for adjustment of his date of rank from 3 January 2000 to 1 July 1999. 

9.  On 2 October 2001, the advisory opinion was furnished to the applicant for his review and possible rebuttal; however, he has not responded as of 18 December 2001. 

10.  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 became effective 1 October 1996.  Under ROPMA, the MYIG for a Reserve captain in order to be eligible for promotion to major is 7 years, and that an officer selected the first time for promotion to the next higher grade may be promoted on or before the date that he/she completes the maximum service.  ROPMA further specifies that selected Individual Ready Reserve (IRR) officers do not have to be in a higher grade position at the time of promotion on their MYIG date, and the other than IRR officers must occupy the higher position for promotion or transfer to an IRR status.  

11.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (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 maximum years of service in grade 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.  The table in subsection (a) establishes the maximum years of service in grade for a captain to be promoted to major as seven years and for a major to be promoted to lieutenant colonel as seven years. 

12.  The Acting Assistant Secretary of Defense for Force Management Policy provided guidance on 2 April 1999 regarding the time for processing reports of promotion boards.  This guidance was predicated on language by the Senate Armed Service Committee in its report on the Defense Authorization Act for Fiscal Year 1999.  This language required a report from the Secretaries of the Military Departments on all promotion board reports when the time from signature by the board members to approval exceeds 100 days.  The Acting Assistant Secretary of Defense also provided milestones for promotion board reports to reach the Office of the Secretary of Defense in order to meet the 100 day standard established by Congress.  As a result, it is apparent that the established standard for processing promotion lists is to obtain approval of promotion lists within 100 days.

CONCLUSIONS:

1.  The applicant was eligible for promotion to major on 1 July 1999 (his MYIG date for promotion to major) based on completing the required 7 years time in grade and occupying a major’s position on that date.  

2.  The Board noted the Congressional intent and Department of Defense guidance regarding timely processing of promotion board reports.

3.  Notwithstanding the advisory opinion, the Board determined that the applicant should have been considered for promotion so that he could be promoted upon reaching his MYIG for promotion to major.  Clearly, the applicant was disadvantaged in that his promotion to major was delayed.

4.  Based on the foregoing, the Board determined on a matter of equity, that the applicant’s promotion effective date would remain 3 January 2000, however, his date of rank would be adjusted to show 1 July 1999.

5.  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 the individual concerned was promoted to major effective 3 January 2000 with a date of rank of 1 July 1999. 

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

BOARD VOTE:  

AAO____  MHM____  KAH____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2001061083	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020129	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	102.0700	
2.		
3.		
4.		
5.		
6.