PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           17 January 2002                  
	DOCKET NUMBER:   AR2001062371

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Kenneth W. Lapin 		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 adjustment to his date of rank (DOR) for major.

3.  The applicant states that under the Reserve Officer Personnel Management Act (ROPMA) that the maximum years in grade of a Reserve captain is seven years.  He also states that while transferring from the Regular Army into the Active Guard/Reserve (AGR) program the 1998 major promotion board had already convened and he has to wait until the next board.  The next board convened on 2 March 1999 and the President approved the selection list on 3 January 2000.  He submits copies of his DD Form 214, captain and major promotion orders and a copy of an Army Board for Correction of Military Records decision proceedings of one of his peers in the same situation in support of his application. 

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 28 May 1986.  He entered on active duty effective 21 January 1987.

5.  He attained the grade of captain effective 1 July 1991.  He was honorably separated from active duty effective 11 June 1998 and transferred to the Reserve, and into the Reserve AGR program.

6.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for major was 30 July 1998.

7.  He was considered and selected for promotion to major by the 1999 Reserve Components Selection Board (RCSB), which convened on 2 March 1999.  The President approved the board results on 3 January 2000.  The processing of the board results was administratively delayed.

8.  The Army Reserve Personnel Command, Officer Management Division verified he was assigned a major’s position effective 1 January 1999.

9.  A promotion memorandum dated 14 January 2000 was issued to him showing 3 January 2000 as his effective date and DOR for major.

10.  Under 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 was implemented effective 1 October 1996.  The ROPMA provides that in order to be eligible for promotion to major the MTIG is 7 years as a captain, and that an officer selected for the first time for promotion to the next higher grade may be promoted on or before the date that he/she completed the maximum service.  The ROPMA further specifies that AGR officers must be serving in a position requiring the higher grade for promotion purposes.

11.  Title 10, United States Code, section 14308(c)(2) states that “Except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion.”

12.  The Chief, Promotion and Notifications Branch, Office of Promotions, Total Army Personnel Command, expressed the opinion that the applicant was promoted to major on 3 January 2000.  Promotion to major required 7 years time in grade; therefore, based on his date of rank of 1 July 1991 to captain, his promotion eligibility date was 30 June 1998.  He was considered for promotion to major by the 1999 RCSB and recommended for promotion.  Under ROPMA, an officer cannot be promoted until the President has approved the board.  The board was approved on 3 January 2000 and the results were released on 14 January 2000.  Officer Management Division verified that he went into the position requiring the higher grade on 1 January 1999.  He was issued a promotion memorandum on 14 January 2000, with a date of rank of 3 January 2000, since this was the day the President approved the board.  Based on this information, it was recommended that the application be denied.

13.  The opinion was forwarded to the applicant for rebuttal on 24 October 2001. In his rebuttal dated 21 November 2001 he contends he was assigned to a major’s position on 29 June 1998 and the date verified by the Officer Management Division is incorrect.  His request comes solely based upon his peers that came into the program at the same time as he did and have had their date of ranks changed to their maximum years in grade.  He would like to have the same opportunity as his fellow officers have when the time comes for the next promotion board.

CONCLUSIONS:

1.  The applicant is entitled to adjustment of his DOR for major to 1 January 1999, the date he was assigned to the higher graded position.

2.  The Board notes the applicant’s contention that he was assigned to a position authorized for a major since 30 June 1998; however, he has not provided substantive evidence to support his contention.  It is also noted that he may provide documentation of assignment to a higher graded position prior to 1 January 1999, and he may only then be eligible for adjustment to his DOR for major to 30 June 1998, his MTIG date.

3.  The processing of the promotion board results was administratively delayed through no fault of the applicant, and he should not be penalized for the delay.

4.  Notwithstanding the delay, the effective date of his promotion should remain as 3 January 2000, the date the President approved the board.

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 January 1999.

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

BOARD VOTE:  

_jlp____  _kwl____  _cjp____      GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Jennifer L. Prater
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001062371	
SUFFIX		
RECON		
DATE BOARDED	20020117	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.