MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            30 July 2002                  
	DOCKET NUMBER:   AR2002070330

	I certify that hereinafter is recorded the record of consideration 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. Arthur A. Omartian  		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas Lanyl		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction to his date of rank for major from 27 August 1997 to 2 May 1996.

APPLICANT STATES:  That in accordance with Army Regulation 135-155 his date of rank for major should be based on exceeding the maximum time in grade as a captain prior to mandatory major promotion board or being assigned to a higher grade.  He also states that his date of rank for captain is 1 May 1989 and his current date of rank for major is based on his mandatory promotion date which is 27 August 1997.  Additionally, his assignment to a higher-grade position as an Active Guard/Reserve (AGR) officer is 24 February 1997.  He submits copies of his promotion orders for captain and major, his AGR assignment orders to a major position and Army Regulation 135-155 (Time in Grade Requirements for Commissioned Officers) in support of his request.

EVIDENCE OF RECORD:  The applicant's military records show:

While serving on active duty in the Regular Army, he was promoted to captain effective 1 May 1989.  Based on the required 7 years time in grade his maximum time in grade (MTIG) date for major was 30 April 1996.

He was honorably discharged from the Regular Army for non-selection, permanent promotion effective 1 January 1997.  He was non-selected by the 1995 and 1996 promotion boards.  

He was assigned to an AGR major position effective 24 February 1997.

He was considered and selected for promotion to major by the 1997 Reserve Components Selection Board (RCSB), which convened from 11 March to 11 April 1997.  The President approved the results of the board on 27 August 1997. 

He was issued a promotion memorandum dated 2 October 1997 showing his promotion effective date and date of rank for major was 2 October 1997.

On 6 November 1998, he was issued a corrected promotion memorandum showing his promotion effective date and date of rank for major as 27 August 1997.

On 19 November 1997, he requested and was appointed in the Reserve, as a captain with an effective date of 2 January 1997.

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 management of Reserve component officers.  

The law was implemented on 1 October 1996.  The 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 AGR officers must be serving in a position requiring the higher grade.  Promotion cannot be effective prior to approval of respective boards by the President.  Promotion in the Reserve is based on assignment in the Reserve on the Reserve Active Status List (RASL).

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.  Promotion of officers previously non-selected but subsequently selected by a mandatory promotion board will be no earlier than the date the President approved the board results.  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, and upon approval by the President and released.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant was released from active duty on 1 January 1997, with a promotion eligibility date of 2 January 1997.  The applicant was selected on the 1997 RCSB that was held from 11 March through 11 April 1997 and promoted with a date of rank of 27 August 1997.  The applicant' s date of rank for captain was 1 May 1989.  His promotion eligibility date was 2 January 1997 (the day after his release from active duty) instead of 30 April 1996 (maximum time in grade of 7 years).  Under ROPMA, an officer cannot be promoted until the President has approved the board.  The President approved the board on 27 August 1997, and the results were released on 2 October 1997.  Applicant went into the position requiring the higher grade on 24 February 1997 as an AGR officer.  He was issued a promotion memorandum on 13 November 1997, with a date of rank of 2 October 1997.  On 9 November 1998, the Office of Promotions corrected his date of rank from 2 October to 27 August 1997.  Based on this information, it is recommended that the Board give the applicant an effective date of 27 August 1997 and a date of rank of 24 February 1997(sic).

The opinion was forwarded to the applicant for acknowledgement/rebuttal on 8 May 2002 and he concurred on 22 May 2002.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of rank for major to 2 May 1996.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board has noted his contention that he should have a date of rank based on the completion of 7 years as a captain.  The Board concludes however, that the applicant was properly considered when he was not selected for promotion to major in 1995 and 1996 while on active duty.  He was fairly considered for promotion but was not selected.

3.  Subsequent to the applicant's non-selections for promotion to major while on active duty, and his separation from active duty on 1 January 1997, he was properly considered for Reserve promotion by the 1997 RCSB, the first board held after his separation and transfer to the Reserve.  This board convened from 11 March to 11 April 1997, and was approved by the President on 27 August 1997.  He was issued a corrected promotion memorandum on 9 November 1998 showing his promotion effective date and date of rank for major as 27 August 1997.

4.  Notwithstanding the opinion from the PERSCOM, the applicant's date of rank for major should be no earlier that the date the President approved the board results for the board that recommended him for promotion to major.  The fact that he was in a major's position on 24 February 1997 is immaterial.  He was not promotable at that time.

5.  The Board notes here that the applicant should not expect his date of rank to be changed to 2 May 1996, since he was on active duty at that time and properly considered and not selected for promotion to major in that year.  It is also noted that the applicant should not expect his date of rank to be changed to 24 February 1997 as he had not been considered and selected for a Reserve promotion prior to that date.  He was separated from active duty on 1 January 1997 and was then properly considered by the first available RCSB recessing on 11 April 1997, when he was selected.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_KAH___  _AAO___  _KAH____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002070330	
SUFFIX		
RECON		
DATE BOARDED	20020730	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.