RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            23 MARCH 2004                  
	DOCKET NUMBER:   AR2003091316

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Lawrence Foster		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his date of rank to major be adjusted to 
15 September 1997, the date he was assigned to a major position following selection for promotion to major.

2.  The applicant states, in effect, that Title 10, United States Code, provides for the promotion of officers “no later than 7 years from Date of Rank to Captain.”  

3.  The applicant provides copies of his promotion order to major, promotion orders to captain, and his assignment orders to the major position.

CONSIDERATION OF EVIDENCE: 

1.  Records available to the Board indicate that the applicant was commissioned as a United States Army Reserve Officer in May 1979.  He was promoted to captain in the United States Army Reserve on 6 June 1986.  In May 1993 he was notified that he had been considered, but not selected for promotion to major by a United States Army Reserve Components Promotion Selection Board.

2.  On 17 July 1993 the applicant was ordered to active duty in the grade of captain for a period of 4 years to “fulfill [an] active Army requirement.”  He remained on active duty until 10 August 1997.

3.  On 15 September 1997 the applicant assumed an Active Guard Reserve position as a major with a United States Army Reserve element in Dublin, California.  He was notified in September 1998 that he had been selected for promotion to major with an effective date and date of rank of 31 August 1998.

4.  In the processing of this case, an advisory opinion was provided by the Special Actions Branch, Office of Promotions, Reserve Components at the United States Army Human Resources Command in St. Louis.  The opinion noted that the applicant was selected for promotion by the 1998 Department of the Army Reserve Components Selection Board and approved by the President on 31 August 1998.  As such, the applicant’s date of rank and effective date for promotion were established as 31 August 1998.  The opinion noted, however, that under the provisions of Army Regulation 135-155, paragraph 4-21d, an Active Guard Reserve officer, provided otherwise qualified will be promoted on the date he attains the maximum time in grade or the date on which he is assigned to the higher grade position, whichever is earlier.  The opinion concluded that the applicant’s promotion eligibility date was established as 
11 August 1997, the day following his release from active duty, and as such was entitled to a date of rank of 11 August 1997.  The opinion recommended his record be corrected accordingly and noted that as a result of the adjustment to his date of rank he would be eligible for consideration by the 2003 lieutenant colonel promotion selection board. 

5.  The applicant was provided a copy of the advisory opinion and concurred with the recommendation included therein.

6.  The 2003 lieutenant colonel promotion selection board has already convened.

7.  Army Regulation 135-155 provides policy and procedures used in the selection and promotion of commissioned officer of the Army Reserve.  Paragraph 4-15 (Promotion eligibility date and date of rank) states in effect that the promotion eligibility date is the date that an officer meets the eligibility criteria for promotion to the next higher grade.  Further, date of rank is defined as the date the member actually or constructively was appointed to a specific grade and it is the date used to determine the relative seniority for officers holding the same grade.  This paragraph concludes with the statement that the officer’s promotion eligibility date will become the officer’s date of rank upon promotion and the date of rank will be used to establish the promotion eligibility date to the next higher grade.

8.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the maximum years of service required in the lower grade for promotion to major is seven years and to lieutenant colonel is seven years.

9.  Title 10, United States Code, Section 14308 (c) (2) states:  “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.”

10.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the maximum years of service in grade so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The table in subsection (a) establishes the maximum years of service in grade for a captain to be promoted to major as seven years and for a major to be promoted to lieutenant colonel as seven years. 

11.  Subsection (b) of Title 10 United States Code, Section 14304 states:  “An officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted without regard to the existence of a vacancy, on the date which the officer completes maximum years of service in grade specified in subsection (a).

12.  Title 10, United States Code, Section 12203 (a) states:  “Appointments of reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officers, shall be made by the President alone.”  Subsequently, in a 22 April 1997 legal opinion on effective dates of promotion for Reserve officers under the Reserve Officers Personnel Management Act, the Chief of the Military Personnel Law Branch, Office of the Judge Advocate General, opined that the effective date of promotion of Reserve Component officers may not predate the approval of the promotion board results by the President.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s promotion eligibility date to major was 11 August 1997 established by officials at the United States Army Human Resources Command in St. Louis, based on the date he was released from active duty.

2.  The applicant was selected for promotion to major by the 1998 Reserve Components Promotion Selection Board; however, the President did not approve the board results until 31 August 1998.  Consequently, the applicant was promoted effective on 31 August 1998, with time in grade for promotion to the next grade effective on that date.

3.  The law provides that a Reserve Component officer who is selected for promotion to major, if not promoted sooner, will be promoted not later than the date he or she reaches the maximum years of service in grade of seven years as a captain.  Therefore, in this case the applicant is entitled to adjustment of his date of rank to major, based on law and regulation currently in effect, of 
11 August 1997 and that this same date is also the starting date for determining the applicant’s promotion eligibility date to lieutenant colonel.  His eligibility date of 11 August 1997 is earlier than the date he was assigned to a major position (15 September 1997) and as such, he is entitled to the earlier date of rank.

4.  Based on adjustment of the applicant’s date of rank to 11 August 1997, the applicant’s promotion eligibility date for lieutenant colonel will be 10 August 2004 and as such, he would have been eligible for promotion consideration by the 2003 lieutenant colonel promotion board.  However, because that board has already convened, the applicant’s records, if otherwise qualified, should be referred for consideration by a special selection board utilizing the 2003 lieutenant colonel promotion selection criteria.
BOARD VOTE:

__TDH__  __KAH __  __LF  ___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  adjusting his date of rank for major to 11 August 1997; and

b.  if otherwise qualified, submit his records for consideration by a special selection board utilizing the 2003 lieutenant colonel promotion board criteria.

		___Thomas D. Howard____
		        CHAIRPERSON

INDEX

CASE ID	AR2003091316	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040323	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.