PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:  21 February 2002
	DOCKET NUMBER:  AR2001062450

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas A. Pagan		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 (DOR) for major be adjusted from 2 November 1997 to 1 April 1996.

3.  The applicant states that he was eligible for promotion to major on 1 April 1996, and was not considered for promotion by either active or Reserve boards due to his separation date from active duty.  He was placed in an 0-4 position as reflected on his Personnel Qualification Record (PQR), dated 16 May 1996.  He was fully qualified, held the position for promotion, and had 7 years time in grade at the time he entered the Reserve.  In support of his application, he submits copies of:  a DD Form 214 (Certificate of Release or Discharge from Active Duty); assignment orders; a PQR, dated 16 May 1996; a memorandum from the Battalion Personnel Staff NCO (PSNCO); and promotion orders to major. 

4.  The applicant’s military records show he was commissioned as a second lieutenant in the USAR on 14 May 1983, in the Infantry branch.  He was ordered to active duty for training (ADT) on 24 February 1985 and was released from ADT on 21 June 1985.  He was ordered to active duty on 22 June 1985.

5.  He was promoted to captain /0-3 on 1 April 1989.

6.  The applicant was considered but not selected for promotion by the 1995 Major Army Competitive Category Promotion Board, which convened from 11 March to 5 May 1995.  

7.  On 7 February 1996, the applicant requested assignment to an Army Reserve
troop program unit (TPU) with terminal leave commencing on 2 February 1996 and terminating on 31 March 1996.  

8.  The 1996 Major Army Competitive Category Promotion Board convened from 26 March to 24 April 1996, during the period of the applicant’s terminal leave.

9.  The 1996 Reserve Components Selection Board (RCSB) convened from 11 March to 5 April 1996 and the results were approved on 9 July 1996.

10.  On 31 March 1996, the applicant was released from active duty under the provisions of Army Regulation 600-8-24, paragraph 2-5, Early Release Program - Voluntary Separation Incentive (VSI).  He had a total of 10 years, 9 months, and 9 days of creditable service.  He was transferred to a TPU.  Item 18 (Remarks) of his DD Form 214 states that he would be paid VSI in the amount of $11,334.26 for 22 years.

11.  The applicant provided a copy of a PQR, dated 16 May 1996, which shows that he was assigned to a position authorized for major.  His DOR for captain was 1 April 1989.

12.  The applicant was considered and selected for promotion to major by the 1997 RCSB which convened from 11 March to 11 April 1997.  The results were approved on 27 August 1997.

13.  A PERSCOM memorandum dated 6 October 1997; subject:  Release Date of the Major, Army Promotion List (APL) Selection Board; states in paragraph 2B, that the approval date for the CY97 major promotion board was 27 August 1997.

14.  Headquarters, United States Army Special Operations Command, Fort Bragg, North Carolina on 2 November 1997, published orders promoting the applicant to major with a DOR of 2 November 1997.

15.  Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty.  This regulation applies to Active Army, Army National Guard, and US Army Reserve commissioned and warrant officers on an active duty list (ADL).  Paragraph 1-10 pertains to promotion eligibility.  It states, in pertinent part, that to be considered for promotion by a selection board, an officer must be on the ADL on the day the board convenes.  It also states that officers with an established separation or retirement date, which falls within 90 days after the date on which the board convened, are not eligible for consideration by a promotion selection board.

16.  The Reserve Officer Personnel Management Act, called ROPMA, is a public law which was enacted by Congress on 5 October 1994 and became effective on 1 October 1996.  ROPMA prescribes the policies and procedures that govern Reserve Component officers.  Under Title 10, U. S. Code, section 14304, of ROPMA, Reserve officers who are on the Reserve Active Status List will be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the maximum years of service in grade, termed maximum time-in-grade (MTIG), so that if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer completes the MTIG.  The MTIG of a Reserve Captain for promotion to Major is 7 years’ service MTIG.  An officer in a Troop Program Unit (TPU) or an Active Guard Reserve (AGR) tour must be assigned to the next higher-grade position to be promoted to the next higher grade.

17.  Under Title 10, U. S. Code, section 741d(2), the DOR of an officer who holds a grade as the result of a promotion, is the date of appointment to that grade, or in other words, the DOR is the effective date of promotion to that grade.  The effective date of promotion and DOR will be the date the officer is assigned to a higher-grade position providing the officer meets all other qualifications for promotion.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he was eligible for promotion to major on 1 April 1996, and was not considered for promotion by either active or Reserve boards due to his separation from active duty.  The applicant was considered but not selected for promotion by the 1995 Major Army Competitive Category Promotion Board.  The applicant was on the ADL but was not eligible for consideration by the 1996 Major Army Competitive Category Promotion Board due to his approved separation, which fell within 90 days of the convening board date.  Therefore, he is not entitled to correction of records to show his DOR as 1 April 1996.

2.  According to ROPMA, the applicant had reached his MTIG as a CPT on 
31 March 1996, but on that date he was still on the active duty promotion list, not on the Reserve Active Status List, and not eligible for promotion consideration under ROPMA at 7 years MTIG.  On 1 April 1996, he was transferred to the Reserve component, and entered on the Reserve Active Status List.  On 2 April 1996, he was assigned to a position in a TPU authorized a major.  He was considered for promotion by the next available RCSB, the CY 97 RSCB, whose recommendations were approved on 27 August 1997.

3.  The applicant had been serving in a major’s position on 27 August 1997.  Therefore, the applicant’s correct DOR and effective date for promotion to major is 27 August 1997, not 2 November 1997.  Accordingly, his orders dated 2 November 1997, should be amended to show the entry “A:  970827” (27 August 1997) instead of the entry “A:  971102” (2 November 1997).  

4.  The applicant should be provided pay and allowances at the rank of major
beginning 27 August 1997.  Therefore, he is entitled to back pay and allowances in the rank of major from 27 August to 1 November 1997.  

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 for the individual concerned be corrected:

a.  by amending his promotion orders dated 2 November 1997, to show the entry “A:  970827” (27 August 1997); and 

b.  by showing that he is entitled to all back pay and allowances in the rank of major from 27 August to 1 November 1997.

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

BOARD VOTE:  

__gp___  __mm____  __tp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___George D. Paxson___
		        CHAIRPERSON

INDEX

CASE ID	AR2001062450	
SUFFIX		
RECON		
DATE BOARDED	20020221	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19960331	
DISCHARGE AUTHORITY	AR  140-10	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 21		
2.		
3.		
4.		
5.		
6.