PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            5 November 2002                  
	DOCKET NUMBER:   AR2002073123

	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. Melvin H. Meyer		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. John T. Meixell		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 adjustments to his dates of rank (DOR) for his promotions to captain (CPT) and lieutenant colonel (LTC), with back pay, based on his constructive service credit (CSC) awarded at appointment.

3.  The applicant states that his original appointment memorandum reflects the appropriate CSC.  In bringing this to the attention of the 90th RSC, Reserve Personnel Division and the Army Reserve Personnel Command (AR-PERSCOM), two corrections were made to his promotion to first lieutenant (1LT) and his promotion to major (MAJ).  He was informed that his promotion memorandum for CPT could not be corrected because the 5th Army originally issued it and the promotion memorandum for LTC could not be corrected because it occurred post Reserve Officer Personnel Management Act (ROPMA). He also states that he raised the issue when he was assigned to the Recruiting Command back in 1989 and was advised that CSC was not being computed when he was appointed.  In March 2002, he was made aware that CSC should have been used in his DOR computation, as a colleague appointed prior to him got his credit.  He submits copies of his appointment memorandum, his promotion memorandums for 1LT, CPT, MAJ and LTC, his correction promotion memorandums for 1LT and MAJ and an electronic-mail transmitted between the 90th RSC and AR-PERSCOM in support of his application.

4.  The applicant’s military records show that he was appointed in the Reserve, Army Nurse Corps, as a second lieutenant effective 10 November 1979, with 2 years, 5 months and 1 day CSC.

5.  At the time of his appointment, his DOR for 2LT was not adjusted based on award of 2 years, 5 months and 1 days CSC.

6.  He was promoted to 1LT with a DOR of 9 November 1982, to CPT with a DOR of 8 November 1986, to MAJ with a DOR of 7 November 1993 and to LTC with a DOR of 9 November 1999.

7.  Promotion memorandums issued by the AR-PERSCOM on 18 April 2002 indicate his DOR for 1LT was corrected to 8 June 1980 and his promotion effective date for MAJ was corrected to 24 January 1994 and DOR for MAJ to 6 June 1991.

8.  Based on the correction to his DOR for 1LT to 8 June 1980 and the required completion of 4 years in the lower grade, his maximum time in grade (MTIG) date for CPT was 8 June 1984.

9.  He was erroneously not considered for promotion to CPT by the 1984 Reserve Components Selection Boards (RCSB).  

10.  Based on the correction to his DOR for MAJ to 6 June 1991 and the required completion of 7 years in the lower grade, his MTIG date for LTC was 5 June 1998.

11.  He was erroneously not considered for promotion to LTC by 1998 RCSB.  

12.  Army Regulation 135-101, prescribes the policies, procedures and eligibility criteria for appointment of commissioned officers in the Reserve in the six branches of the Army Medical Department (AMEDD).  This regulation provides that officers will be granted CSC for periods of professional training and experience accrued after receipt of the basic qualifying degree.  

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation provides that individuals will receive mandatory promotion consideration prior to their promotion eligibility dates so that, if selected, they may be promoted on their future promotion eligibility dates.  The regulation also specifies that promotion to CPT requires 4 years completion of time in the lower grade.  

14.  Current promotion policy specifies that promotion reconsideration by a Standby Advisory Board (STAB) and/or Special Selection Board (SSB) may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.  

15   Reserve promotion policy specifies that promotion reconsideration by a STAB or an SSB for commissioned officers may only be based on erroneous non-consideration or material error that existed in the record of a commissioned officer at the time of consideration.  A STAB is required for reconsideration for criteria prior to 1 October 1996, and an SSB is required for 1 October 1996 and later.  It further specifies that promotion reconsideration by a STAB for criteria prior to the ROPMA, implemented on 1 October 1996, may only be based upon determination of this Board and approved by the Secretary of the Army.  Approval for criteria after the ROPMA by an SSB may be accomplished by the PERSCOM.

16.  The ROPMA, a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve component commissioned officers.  The law was implemented on 1 October 1996.  ROPMA provides that in order to be eligible for promotion to LTC the MTIG for a major 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 completed the maximum service.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve.

CONCLUSIONS:

1.  The Board notes the applicant's contention that his DOR's for CPT and LTC should be adjusted based on his CSC awarded at appointment.  However, since the applicant’s DOR’s for 1LT and MAJ have been adjusted, he is eligible for consideration by an appropriate STAB and SSB for promotion consideration to CPT and LTC.  It is also noted that his award of 2 years, 5 months and 1 day CSC was erroneously not computed at the time of his appointment effective 10 November 1979.  Had the applicant's CSC been properly computed his DOR for 2LT would have been adjusted to become 9 June 1977.  With an adjusted DOR for 2LT he would have been eligible for an earlier promotion to 1LT, instead of 9 November 1982.  Since his DOR for 1LT has been corrected to reflect 8 June 1980, he is eligible for promotion consideration to CPT under 1984 criteria.  Since his DOR for MAJ has been corrected to 6 June 1991, he is also eligible for promotion consideration to LTC under 1998 criteria.

2.  The Board concludes that the applicant’s DOR for 2LT was not properly adjusted based on award of CSC at the time of his appointment and subsequent to his promotion to 1LT.  The Board also concludes that based on these facts, the applicant was not given fair and timely promotion consideration for CPT in 1984 and for LTC in 1998.  He was considered and selected for promotion to CPT in 1986 and to LTC in 1999.  The applicant should not be penalized for what appears to have been an error on the part of those responsible for computation of his CSC which prevented timely promotion considerations for 1LT, CPT, MAJ and LTC.

3.  The Board further notes that based on the correction to his DOR's for 1LT and MAJ, and for the applicant to receive the earliest DOR's for CPT and LTC, it would best to submit his records for appropriate STAB and SSB consideration and should now be submitted for this purpose.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by submitting the records of the individual concerned to duly constituted a STAB/SSB as deemed appropriate for promotion consideration for CPT under 1984 criteria and for LTC under 1998 criteria.

2.  That if selected his records be further corrected by showing he was promoted to CPT and to LTC on his dates of eligibility therefor, as determined by appropriate Departmental officials using the criteria cited, with entitlement to all back pay and allowances, provided he was otherwise qualified and met all other prerequisites for promotion.

3.  That if not selected, the applicant be so notified.

BOARD VOTE:  

__JTM___  _MHM__  __ENA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Melvin H. Meyer
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002073123	
SUFFIX		
RECON		
DATE BOARDED	5 November 2002	
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.