PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:          4 November 2003
	DOCKET NUMBER:  AR2003084771

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Antonio Uribe		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 date-of-rank (DOR) for promotion to lieutenant colonel (LTC) be changed from 12 April 2002 (sic) to 28 February 2002 (sic).

3.  The applicant states that he reached 6 years' (sic) time-in-grade (TIG) on 28 February 2002 (sic) and this date should be the effective date of the promotion memorandum, not 12 April 2002 (sic) which was the date the promotion board released the Board results.  In support of his request, the applicant submits a copy of the promotion order to major (MAJ) and lieutenant colonel (LTC), an order to active duty, and an electronic mail referencing promotion board information.

4.  The applicant’s military records show that he is a LTC, United States Army Reserve (USAR), currently serving on active duty.  For TIG purposes, his DOR to MAJ was established as 24 February 1993.

5.  In accordance with Table 2-1, Army Regulation (AR) 135-155, the maximum years-in-grade (MYIG) for promotion from MAJ to LTC is 7 years, making the applicant's MYIG date to LTC 23 February 2000.  Also in accordance with AR 135-155, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  The effective date and date of promotion of non-unit USAR officers will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer meets MYIG, whichever is later [emphasis added].

6.  On 23 February 2000, the applicant reached his MYIG.  In accordance with his promotion memorandum, on 12 April 2000, he was promoted to the rank of LTC.

7.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, US Total Army Personnel Command (PERSCOM).  The opinion stated that the applicant was selected for promotion to LTC by the 1999 DA Reserve Components Selection Board with a promotion eligibility date of 23 February 2000, and was subsequently promoted by promotion memorandum, dated 9 May 2000, with a DOR of 12 April 2000, the date the promotion board was approved by the President.  The Office of Promotions, Reserve Components, stated that the applicant has no basis to have his DOR changed to 23 February 2000 and recommended that his request for an earlier DOR be disapproved.  It was noted that, under AR 135-155, paragraph 4-21, the approval date of the board (12 April 2000) is later than the applicant’s MYIG date (23 February 2000), thus 12 April 2000 is the applicant's correct DOR.  The applicant was provided a copy of the advisory opinion for possible rebuttal; however, to date, he has not provided one.

8.  The Reserve Officer Personnel Management Act (ROPMA), public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern the management of Reserve component 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 completes the maximum service.  ROPMA further specifies that an AGR officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve.  Promotion cannot be effective prior to approval of respective boards by the President.

9.  The ROPMA promotion boards for LTC were administratively delayed.  In some cases the Presidential approvals of the results of the pertinent promotion boards were also administratively delayed.  Based on normal processing, they should have been convened earlier and approved approximately 100 days after the respective recess dates.

10.  Title 10, United States Code, section 14304 specifies that officer shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the 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 the required years of service. 

11.  Title 10, United States Code, section 14308(c)(2) states that “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.”

CONCLUSIONS:

1.  The applicant is entitled to adjustment of his date of rank for LTC to 23 February 2000, based on the processing delays of the 1999 promotion board.

2.  The processing of the promotion board results was administratively delayed through no fault of the applicant, and he should not be penalized for the delay.

3.  Notwithstanding the delay, the effective date of promotion shall remain as 12 April 2000, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the antedated date of rank.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the individual concerned was promoted to lieutenant colonel effective 12 April 2000, with a date of rank of 23 February 2000, with no further entitlement to additional pay or allowances based on this adjustment.

BOARD VOTE:  

___fne__  __gjw___  __au____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003084771	
SUFFIX		
RECON		
DATE BOARDED	20031104	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	112.0200	
2.		
3.		
4.		
5.		
6.