PROCEEDINGS

	IN THE CASE OF:  .

	BOARD DATE:  13 June 2002
	DOCKET NUMBER:  AR2002027195

	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:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Donald P. Hupman		Member	
	Ms. Barbara J. Ellis		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) for promotion to major (MAJ) under the Reserve Officer Personnel Management Act (ROPMA) be corrected from 19 July 2000 to 28 June 2000. 

3.  The applicant states, in effect, that he was eligible for promotion to MAJ on 28 June 2000, 7 years from his DOR for captain (CPT).  

4.  The applicant’s military records show he was commissioned as a second lieutenant in the USAR on 1 July 1986. 

5.  He was promoted to captain/0-3 on 29 June 1993.

6.  The applicant was considered and selected for promotion to major by the 2000 Reserve Components Selection Board (RCSB) which convened on 
7 March 2000, adjourned on 7 April 2000, whose recommendations were approved by the President on 19 July 2000, and the results announced on 10 August 2000.

7.  The Total Army Personnel Command, St. Louis, issued a promotion memorandum, dated 10 August 2000, promoting the applicant to MAJ with an effective date and DOR of 19 July 2000.  The memorandum also stated that the applicant was assigned to a position equal to or higher than the rank of MAJ.

8.  The Reserve Officer Personnel Management Act (ROPMA), a public law under Title 10, U. S. Code, 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 who are on the Reserve Active Status List (RASL) shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a), a Reserve Component Selection Board (RCSB) far enough in advance of completing a specified maximum years (time) in grade (MTIG), so that if the officer is selected for promotion the first time considered by a RCSB, 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.

9.  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.  The regulation also states that an officer in a Reserve Troop Program Unit (TPU) or the Active Guard Reserve (AGR) must be assigned to the next higher-grade position to be promoted to the next higher grade or request transfer to the Individual Ready Reserve to be promoted.

10.  The Judge Advocate General (TJAG) rendered a legal opinion in similar cases 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.  The applicant was considered by a promotion board early enough to be promoted to the rank of MAJ on his MTIG as a CPT, 28 June 2000, as provided under ROPMA.  On 28 June 2000, the applicant was serving in a position authorized an officer in the rank of MAJ and, therefore, was eligible for promotion to that higher rank on that date.  As a matter of justice, his DOR for MAJ should be adjusted from 19 July 2000 to 28 June 2000.  

2.  Notwithstanding the delay, the effective date of promotion shall remain as 19 July 2000, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the antedated promotion.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by showing that he was promoted to MAJ effective 19 July 2000, with a DOR of 28 June 2000, with no further entitlement to additional pay or allowances based on these adjustments.

BOARD VOTE:  

__ca___  __dh__  ___be___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Celia L. Adolphi__
		        CHAIRPERSON

INDEX

CASE ID	AR2002067195	
SUFFIX		
RECON		
DATE BOARDED	20020613	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  21		
2.		
3.		
4.		
5.		
6.