MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 June 2002                   
	DOCKET NUMBER:   AR2001062370

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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:  That his date of rank (DOR) for major (MAJ) be adjusted from 3 January 2000 to 30 April 1998.

APPLICANT STATES:  In effect, that he was promoted to captain (CPT) on 
1 May 1991, with a DOR of 1 May 1991.  Under the Reserve Officer Personnel Management Act (ROPMA), a USAR CPT should be considered for mandatory promotion to MAJ the first time (in the zone) so that if selected, he can be promoted to MAJ at 7 years maximum time in grade (MTIG) from the DOR for CPT.  The applicant's MTIG for promotion to MAJ was 30 April 1998.  He was selected for promotion to MAJ the first time he was considered by a Reserve promotion board, the 1999 board, and should have been promoted to MAJ with a DOR of 30 April 1998.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant’s military records show that he was an officer in the Regular Army (RA).  He was promoted to CPT, RA on 1 May 1991, with a DOR for CPT of 
1 May 1991.  On 16 March 1998, he was honorably discharged from the RA and transferred to the U. S. Army Reserve (USAR).  He was commissioned as a USAR CPT on 17 March 1998, and assigned as the Measurement/Measuring and Signature Intelligence (MASINT) Section Leader in the Troop Program Unit (TPU), A Company, 323rd Military Intelligence Battalion (MI Bn), at Fort Meade, Maryland.

After being commissioned as a USAR CPT, the next available Department of the Army Reserve Components Mandatory Promotion Selection Board (RCSB) for MAJ convened on 24 March 1998.  The applicant was not considered by this board due to the short time between his 17 March 1998 USAR commission and the convening of the board.

The applicant was first considered for promotion under ROPMA by the 
2 March 1999 RCSB for MAJ and was selected for promotion on this first consideration.  The recommendations of the promotion board were approved by the President on 3 January 2000.  The applicant was promoted to MAJ USAR effective 3 January 2000, with a DOR of 3 January 2000, by a promotion memorandum issued by U. S. Total Army Personnel Command (PERSCOM) dated 14 January 2000.

The ROPMA is a public law under Title 10, U. S. Code, enacted by Congress on 5 October 1994, which prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers.  The ROPMA law became effective 1 October 1996.  Section 14304, paragraph (b), of the ROPMA law states that an officer recommended for promotion to the next higher 

grade by a section 14101(a) selection board (RCSB) the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list, shall be promoted on the date on which the officer completes the MTIG.  The MTIG for promotion to major is 7 years as a captain.  For selection above the zone of consideration (second and subsequent considerations), the effective date of promotion and DOR will be the date the promotion board recommendations are approved by the President, if they are otherwise qualified.

Since the applicant was eligible to be considered by the 1998 RCSB but had not been considered by that board due to the short time from his commissioning in the USAR to the convening of the board, he was considered by a special selection board (SSB) on 11 August 2000, but was not selected by the SSB for promotion under the 1998 criteria.  The results of this SSB were approved on 
6 March 2001, and the applicant was notified of this by a PERSCOM memorandum dated 12 April 2001.

The Office of Promotions, Reserve Components, PERSCOM, provided an advisory opinion, dated 15 February 2002, that the applicant was considered by a SSB under 1998 promotion criteria but not selected.  The applicant was considered for promotion by the 1999 RCSB for promotion to MAJ and selected.  He was correctly promoted to MAJ on 3 January 2000, with a DOR of 3 January 2000, based on the date the President approved the board recommendations.  The applicant was provided a copy of this advisory opinion on 20 February 2002.

The applicant provided telephonic rebuttal that, he was first considered by the 1999 RCSB and selected in 1999 and approved on 3 January 2000.  Since he was selected the first time he was considered for promotion, the provisions of Title 10, U. S Code, section 14304, paragraph (b), apply which state, in pertinent part, that an officer recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion, shall be promoted on the date on which the officer completes the maximum time in grade. He stated that his non-selection by the SSB, which occurred on 11 August 2000 and was approved on 8 March 2001, was his second time considered even though it was against 1998 criteria.

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

1.  The applicant was selected for promotion to MAJ the first time considered under the 1999 promotion criteria.  However, he should have been considered the first time, in his primary zone, under the 1998 promotion criteria.  When so 

considered by the SSB in 2000 under the 1998 criteria, he was not selected for promotion.  Consideration under the 1998 criteria was then his first time consideration.  Since he was not selected under the 1998 criteria but was selected above the zone under the 1999 criteria, the provisions of Title 10, U. S. Code, section 14304, paragraph (b), do not apply concerning the promotion DOR being on the MTIG.  The applicant's MAJ promotion effective date and DOR of 
3 January 2000, the date that the 1999 RCSB recommendations were approved, are correct.  The 1999 RCSB was, in effect, his second time consideration for promotion.

2.  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

__rvo___  __rwa___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062370	
SUFFIX		
RECON		
DATE BOARDED	20020620	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	102.07	
2.		
3.		
4.		
5.		
6.