PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            6 August 2002                  
	DOCKET NUMBER:   AR2002068665

	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:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. Donald P. Hupman, Jr.		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 for major from 3 January 2000 to 23 August 1999.

3.  The applicant states that based on his maximum 7 years time in grade as a captain, his date of rank to major should be adjusted accordingly per Army Regulation 135-155.  He also states that he was assigned to a major position since 8 January 1999.  He submits copies of his promotion orders for captain and major and his Notification of Promotion Status memorandum in support of his request.

4.  The applicant’s military records show that he was appointed in the Reserve, Infantry Branch, as a second lieutenant effective 26 August 1985.

5.  He was ordered to active duty in an Active Guard/Reserve (AGR) status with a reporting date of 25 July 1988.

6.  He was promoted to first lieutenant effective 25 August 1988 and to captain effective 24 August 1992.

7.  The Reserve Officer Management Division verified that he was assigned to an AGR major position effective 8 January 1999.

8.  Based on the required 7 years time in grade his maximum time in grade (MTIG) date for major was 23 August 1999.

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

10.  He was promoted to major with a date of rank and promotion effective date of 3 January 2000.

11.  The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern the management of Reserve component officers.  The law was implemented on 1 October 1996.  ROPMA provides that in order to be eligible for promotion to major, the MTIG for a captain is 7 years, 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 completes the maximum service.  ROPMA further specifies that an AGR officer must be serving 

in a position requiring the higher grade or assigned to the Individual Ready Reserve.  Promotion cannot be effective prior to approval of respective boards by the President.

12.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that time in grade for a commissioned officer is 7 years in the grade of captain for promotion to major.  The regulation also specifies that AGR officers will be promoted provided they are assigned to a position in the higher grade and the date of rank will be the date the officer attained the MTIG or the date on which assigned to a position in the higher grade.

13.  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.”

14.  The Chief, Promotion and Notifications Branch, Office of Promotions, Total Army Personnel Command, expressed the opinion that the applicant's date of rank to captain was 24 August 1992.  Based on 7 years time in grade, his MTIG date was 23 August 1999.  The applicant was selected by the 1999 major RCSB and promoted with a date of rank of 3 January 2000.  The applicant was given the date of rank of 3 January 2000, the date the President approved the promotion board.  This is the earliest date he can receive and it was recommended that the applicant’s request be denied.

15.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 10 May 2002.  He did not respond.

CONCLUSIONS:

1.  The applicant is entitled to adjustment of his date of rank for major to 23 August 1999, the date he met all the requirements for promotion to major.

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

3.  Notwithstanding the delay, the effective date of promotion shall remain as 3 January 2000, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the date of rank adjustment.

4.  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 by showing the individual concerned was promoted to major effective 3 January 2000, with a date of rank of 23 August 1999, with no further entitlement to additional pay or allowances based on this adjustment.

BOARD VOTE:  

_LLS___  _PM____  _DPH____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002068665	
SUFFIX		
RECON		
DATE BOARDED	20020806	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.