PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           11 September 2003                  
	DOCKET NUMBER:   AR2003084322

	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. Stanley Kelley 		Chairperson	
	Mr. Christopher J. Prosser		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, in effect, that her enlistment be voided and correction to her promotion effective date and date of rank for major. 

3.  The applicant states that her promotion packet was completed but was not submitted to the board, which caused her to lose her commission status as a captain.  She also states that she was denied promotion to major by the promotion board.  In support of her application she submits a letter the Director, Military Personnel, New York Army National Guard (NYARNG) and two memorandums from the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command.

4.  The applicant’s military records show that she was appointed in the Reserve, Army Nurse Corps, as a second lieutenant effective 28 December 1982.  She attained the rank of captain effective 26 December 1989.

5.  She was appointed in the NYARNG as a captain effective 8 September 1995.

6.  Based on the required 7 years time in grade, her maximum time in grade (MTIG) date for promotion to major was 25 December 1996.

7.  She was erroneously not considered for promotion to major by the 1996 Reserve Components Selection Board (RCSB).

8.  She was considered and not selected by the 1997 and 1998 RCSB’s.  The President approved the 1997 and 1998 RCSB’s effective 27 August 1997 and 31 August 1998, respectively.

9.  In a memorandum dated 9 September 1998, the Director, Military Personnel, NYARNG, advised the National Guard Bureau (NGB) that his office reviewed the facts presented by the applicant and confirmed they were valid.  The applicant’s required documents were forwarded to the state for the 1996 promotion board.  There is no evidence that the state forwarded those documents to the board.

10.  She was separated from the NYARNG effective 29 November 1998 for non-selection of promotion.  Her Federal Recognition was withdrawn the same date. 

11.  She enlisted in the NYARNG in pay grade E-5, effective 30 November 1998.

12.  On 1 April 2002, a Department of the Army Special Selection Board (SSB), which convened on 26 June 2001, selected her for promotion to major with an promotion effective date and date of rank of 22 July 1997.  The memorandum stated that the under the Reserve Officer Personnel Management Act (ROPMA) the earliest date the officer can have is the approval date of the criteria year that 

she was recommended under.  The memorandum also stated that the effective date of promotion would be the later of the promotion eligibility date or the date Federal Recognition is extended in the higher grade.  

13.  The ROPMA specifies that the earliest date of rank an officer selected by an SSB may have is the approval date of the criteria under which they were recommended.  

14.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that officers selected by a SSB are eligible for the same date of rank that they would have received by the original board in which the error occurred.  The regulation further specifies that the effective date that officers with a promotion eligibility date prior to the SSB would be the adjourning date of the mandatory board or the adjourning date of the SSB criteria by which recommended.

15.  Title 10, United States Code, section 14502(e)(1), specifies that an officer who is placed on a promotion list as a result of recommendation by an SSB shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered him or which did consider him.

16.  Title 10, United States Code, section 14502(e)(2), specifies that promotion as a result of recommendation of an SSB convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade as the officer would have had if the officer had been recommended for promotion to that grade by the mandatory selection board which should have considered the officer or which did consider the officer.

17.  Title 10, United States Code, section 14502(e)(3), specifies that if a report of an SSB, as approved by the President, recommends for promotion to the next higher grade a former officer whose name was referred to it for consideration, the Secretary concerned may act to correct the military records of the former officer to correct an error or injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer.

18.  NGB Regulation 600-100, establishes the policies and procedures for promotion of officers in the ARNG.  Paragraph 2-2b specifies that the effective date of Federal Recognition is the date on which an officer executes his/her oath of office.  However, until Federal Recognition in the new rank is extended by the NGB, the individual cannot be paid for the higher rank.  The NGB has advised in similar cases such as this that the approval process normally takes approximately 3 months.

CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to adjustment to her date of rank for major to 26 March 1997, 3 months after her MTIG date for major of 25 December 1996 and in accordance with the approval processing time for Federal Recognition.

2.  The applicant is also entitled to have her enlistment contract voided, with no force or effect, reinstatement to her previous commissioned status, and further correction of her military records to show she was promoted to major with a date of rank of 26 March 1997.  Through no fault of the applicant, she was erroneously not considered by the 1996 RCSB and did not receive consideration by an SSB under the 1996 criteria.

3.  The Board notes that the applicant reconsidered for promotion to major by an SSB under 1997 criteria.  She was subsequently promoted to major with a promotion effective date of 22 July 1997, which was prior to the approval date of the 1997 RCSB.  Since the board does not have knowledge of when the applicant was assigned to a major’s position, this date will remain as her promotion effective date.  Therefore, the Board concludes that the applicant is entitled to correction to her date of rank for major and voiding of her enlistment.

4.  In view of the foregoing, and insofar as the Department of the Army is concerned, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  Insofar as records of the New York Army National Guard are concerned, the Army Board for Correction of Military Records recommends that The Adjutant General of the State of New York:

a.  void the discharge of the individual concerned dated 29 November 1998, with reinstatement to her previous Reserve commissioned status;

	b.  place an adequate explanation in her official personnel files to show that the gap in her officer evaluation reports, from the dates of her now-voided discharge, to the date of return to her previous Reserve commissioned status, was not caused by any fault on her part, and to insure that she is not prejudiced thereby in the consideration of any future personnel actions; 

	c.  expunge all documents related to her now-voided non-selection for promotion by the 1997 Reserve Components Selection Board and her discharge from her official military records.

	d.  void her 30 November 1998 enlistment in the New York Army National Guard, with no force or effect; and

e.  show that appointment and Federal Recognition in the rank of major was issued by the National Guard Bureau with a promotion effective date of 22 July 1997 and date of rank of 26 March 1997.

2.  That the Defense Finance and Accounting Service offset the pay received by the applicant in her now voided enlisted status.

BOARD VOTE:  

_JTM___  _SK_____  _CJP____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		        _Stanley Kelley___
		        CHAIRPERSON

INDEX

CASE ID	AR2003084322	
SUFFIX		
RECON		
DATE BOARDED	20030911	
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.