PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           31 October 2002                  
	DOCKET NUMBER:   AR2002073077

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Ms. Regan K. Smith		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 that his effective date of rank for promotion to Major (MAJ/O4) be adjusted from 31 December 2001 to 13 April 2001 (sic).

3.  The applicant states, in effect, that he was promoted to Captain (CPT/O3) on 12 April 1994 and, based on 7 years time-in-grade, his promotion eligibility date (PED) to Major would have been 11 April 2001 (not 13 April 2001 as he indicated above).  He was selected for promotion by the 2000 Department of the Army Reserve Component Selection Board, but because was was serving on active duty in an Active Guard Reserve (AGR) CPT/O3 assignment he was not promoted until 31 December 2001 when he was assigned to a MAJ/O4 billet.

4.  The applicant’s military records show that he was appointed as a Second Lieutenant, Aviation Branch, United States Army Reserve on 5 May 1989 upon his graduation from the University of Florida.  He served on active duty from 30 September 1989 through 21 August 1999 when he was separated as a Captain with an honorable characterization of service.

5.  Immediately following his separation from active duty, the applicant entered the AGR program and was assigned to a CPT/O3 billet.  Based upon his time-in-grade as a Captain, he was considered and selected for promotion to Major by the 2000 Department of the Army Reserve Components Selection Board with a PED of 11 April 2001.  He was promoted to Major on 31 December 2001 when he was reassigned to a MAJ/O4 billet.  US Total Army Personnel Command (PERSCOM) memorandum, dated 22 April 2002, subject:  Promotion as a Reserve Commissioned Officer of the Army in Active Guard/Reserve Status under Provision of Title 10, USC Chapter 1405 shows the applicant's effective date of promotion and date of rank as 31 December 2001.

6.  In the processing of this case, the United States Total Army Personnel Command, St. Louis, Missouri, provided an advisory opinion from the Office of Promotions, Reserve Components, Special Actions Branch, recommending that the applicant's request be denied.  The opinion stated that the applicant was selected for promotion to Major by the 2000 Reserve Components Selection Board with a PED of 11 April 2001.  However, the applicant was not assigned to a MAJ/O4 billet until 31 December 2001.  Since the applicant was not in a higher grade position on his PED, he was not eligible for promotion to Major on that date.

7.  On 17 July 2002, the applicant was provided a copy of this advisory opinion for his information and possible rebuttal.  The applicant was advised he had 30 days to reply; however, he did not respond within the 30 days, nor did he ask for an extension beyond the 30 days.

8.  On 9 October 2002, the United States Total Army Personnel Command, St. Louis, Missouri, Office of Promotions, Reserve Components, Special Actions Branch, at the request of this Board, provided an amendment to its original advisory opinion.  It was recommended that the applicant be issued a corrected promotion order to reflect an effective date of promotion of 31 December 2001 and a date of rank of 11 April 2001.

9.  Army Regulation 135-155, then in effect, provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard of the United States and the U. S. Army Reserve (USAR).  Paragraph 4-21(d) states that AGR officers selected for promotion by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  AGR officers who are selected for promotion by a mandatory promotion board, but who are not assigned to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position of higher grade, whichever is earlier.

CONCLUSIONS:

1.  Army Regulation 135-155 states that the date of rank will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position of higher grade, whichever is earlier.  In this case, the date of rank should be 11 April 2001.

2.  Army Regulation 135-155 states that the effective date of promotion for AGR officers will be the date of assignment/attachment to a higher graded position or the day after release from AGR status.

3.  The applicant's effective date of promotion is correct; however, his date of rank should be adjusted to 11 April 2001.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant's date of rank is 11 April 2001, the date he attained his maximum time in grade.

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

BOARD VOTE:  

__clg___  __rks___  __dph___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Curtis L. Greenway
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002073077	
SUFFIX		
RECON		
DATE BOARDED	20021031	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	102.0700	
2.		
3.		
4.		
5.		
6.