PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:  27 August 2002
	DOCKET NUMBER:  AR2002068568

	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	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Arthur A. Omartian		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 major (MAJ) in the U. S. Army Reserve (USAR) be adjusted from 2 October 1998 to 
30 November 1997, the date of his 7 years maximum time-in-grade (MTIG) as a captain (CPT).

3.  The applicant states, in effect, that his 7 years MTIG as a CPT for promotion to MAJ was 30 November 1997, but that he was promoted to MAJ in the USAR with an effective date and DOR of 2 October 1998.  According to Title 10, U. S. Code, section 14304, his DOR should be 30 November 1997.

4.  The applicant’s military records show that he was a Regular Army CPT with a DOR of 1 December 1990.  On 1 February 1997, after 10 years, 8 months, and 
4 days active service, he resigned his Regular Army commission under the Fiscal Year 1997 Army Officer Voluntary Separation Incentive Program (VSIP).  As a provision of the VSIP, he was subsequently commissioned as a CPT in the USAR effective 2 February 1997, and assigned to the Individual Ready Reserve (IRR). On 25 March 1998, the applicant was transferred from the IRR to a USAR Troop Program Unit (TPU), the 78th Battle Planning Group, 78th Division (Exercise), in a CPT's position.  On 11July 1998, the applicant failed an Army Physical Fitness Test (APFT) on the 2-mile run time.  His last physical examination was in October 1994 in which he was found physically qualified for military service.

5.  He was eligible for consideration for promotion to MAJ in the USAR at 
7 years MTIG as a CPT, 30 November 1997.  The applicant was considered for promotion to MAJ by the 1998 Army Reserve Component Selection Board which convened on 24 March 1998, adjourned on 29 April 1998, and whose recommendations were approved on 31 August 1998.  On 1 October 1998, the applicant was placed in a MAJ's position in the TPU.  On 2 October 1998, the applicant passed the APFT.  On 17 November 1998, the U. S. Army Reserve Personnel Command (AR-PERSCOM) published a promotion memorandum promoting the applicant to the rank of MAJ with an effective date and DOR of 
2 October 1998, based on being qualified for promotion as a result of passing the APFT.

6.  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 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 MAJ is 7 years as a CPT.  The normal date of promotion, if otherwise qualified, is the date the President approves the promotion board recommendations.

7.  Army Regulation 135-155 (Army National Guard and U. S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraphs 4-11 and 4-15, in pertinent part, state that before an officer who has been recommended for promotion to the next higher grade can be promoted, they must be assigned to the next higher-grade position in a TPU or be assigned in the IRR without respect to a next higher-graded position.  Paragraph 14-21, in pertinent part, states that when an officer does not meet all of the requirements for promotion after being selected for promotion, the effective date will be no earlier than the date all the qualifications are met.  The requirements for promotion, in addition to position as stated above, are a physical examination within the last five years, a security clearance within the last 15 years, meet Army height and weight standards, and have passed the APFT.

8.  The Judge Advocate General (JAG) rendered a legal opinion 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 (DOR) to the date of the officer’s maximum time-in-grade (MTIG).”  Adjusting the DOR does not affect the current effective date or military pay and allowances.  Time in grade for consideration for promotion to the next higher grade is calculated from the DOR.

CONCLUSON:

1.  The applicant was not considered by a promotion board early enough to be promoted to the rank of MAJ on his MTIG as a CPT, 30 November 1997, as provided under ROPMA law.  On 30 November 1997, the applicant was assigned to the IRR, had a current physical and security clearance, and was therefore qualified for promotion.  As a matter of justice, his DOR for MAJ should be adjusted from 2 October 1998 to 30 November 1997.  However, such adjustment does not change the effective date of promotion and does not entitle the officer to additional pay and allowances.

2.  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 be corrected for the individual concerned by showing that he was promoted to MAJ, USAR, effective 2 October 1998, with a DOR of 30 November 1997 (adjusted DOR), with no further entitlement to additional pay or allowances based on these adjustments.

BOARD VOTE:  

__iw____  __tl___  __ao____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Irene N. Wheelwright_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001060276	
SUFFIX		
RECON		
DATE BOARDED	20020312	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PART	
REVIEW AUTHORITY		
ISSUES         1.	102.07 – Date of Rank	
2.		
3.		
4.		
5.		
6.