PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            23 September 2003                  
	DOCKET NUMBER:   AR2003084888

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Patrick H. McGann, 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 correction to his promotion effective date and date of rank for major from 19 June 2002 to 7 January 2001, the date the President approved the June 2000 United States Army Reserve (USAR) Position Vacancy Board (PVB) and removal of his name from March 2002 Reserve Components Selection Board (RCSB).

3.  The applicant states that, as a captain, he was assigned as a Legal Assistance Officer (Unit Identification Code WR1EU1, position 0030, paragraph 102, line 02) requiring an officer in the grade of major.  He was assigned to that position from November 1999 until 11 March 2002.  The former commander, 12th Legal Support Organization, submitted a PVB packet to the Commander, Army Reserve Personnel Command (AR-PERSCOM) requesting to fill the position in which he was assigned.  The DA Form 4935-R (Request for Unit Vacancy Fill) and DA Form 2464-R (USAR Unit Vacancy Promotion Recommendation) referred to an incorrect position (Unit Identification Code WR1EUZ, paragraph 107, line 03), which was authorized to be filled by an officer of the grade of captain.  He further states that he was considered and recommended by the June 2000 PVB for promotion to major in the position he was assigned at the time the board convened (Legal Liaison Officer).  He was considered and selected for promotion to major by the March 2002 Reserve Components Selection Board with a date of rank of 19 June 2002.  He also states that the 2000 USAR PVB was released on 7 March 2002.  In support of his request he submits a memorandum from his former commander, 12th Legal Support Organization.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 1 February 1992, with prior service.

5.  He was promoted to captain effective 31 January 1996 and to major effective 19 June 2002.

6.  On 24 November 1999, the Commander, 81st Regional Support Command and the Commander, 12th Legal Support Organization, submitted a DA Form 2464-R and DA Form 4935-R to the Commander, AR-PERSCOM, recommending the applicant for promotion to major in the position of Legal Assistance Officer based on a position vacancy.

7.  He was considered and selected for promotion to major by the 2000 PVB.  The President approved the board results effective 7 January 2001.

8.  On 7 September 2001, the applicant’s unit commander, requested a legal review of the applicant’s promotion.  In his request he stated that the applicant was selected for promotion to major by the PVB approved on 7 January 2001.  

However, due to a clerical error that was made by the unit on the DA 
Form 2464-R and DA Form 4835-R the promotion was being withheld.  The applicant was assigned to the wrong paragraph and line number, which resulted in the rejection of his promotion at AR-PERSCOM.  He also stated that at that time, the clerk entered the wrong paragraph and line number on the forms and this would be an administrative, no fault error due to the fact that the applicant was in a major position and a major vacancy was listed on the DA Form 2464-R. The DA Form 4835-R request for fill was also listed as a major’s position.

9.  On 14 December 2001, the Acting Director, Personnel Actions and Services, AR-PERSCOM, submitted a memorandum to the Office, Chief Army Reserve for a legal opinion on the applicant’s promotion.  He stated that the applicant submitted a packet for the 2000 PVB and was subsequently selected for major.  Unfortunately, the applicant could not be promoted to major because of an inadvertent administrative error made by the Commander of the 12th Legal Support Organization.  It was the opinion of AR-PERSCOM that if the applicant applied to the Army Board for Correction of Military Records he would have a valid case.  The applicant was selected on the “whole person concept” and should not be penalized for his commander’s administrative error in identifying the incorrect position.

10.  On 26 February 2002, the Chief, Military Personnel Law Branch, Administrative Law Division, Office of The Judge Advocate General, responded to the request.  He stated that the June 2000 PVB recommended the applicant for promotion to the higher grade based upon his assignment to another position (WR1EU2, paragraph 102, line 3 of the unit manning roster), which required an officer in the grade of captain.  Accordingly, the board must remove his name from the promotion list or board report as appropriate.  The applicant was also notified that he could seek relief from the Army Board for Correction of Military Records.  

11.  He was considered and selected for promotion to major by the Reserve Components Selection Board, which convened 4 March to 3 April 2002.  The President approved the board results on 19 June 2002 and the applicant was promoted on the same date.

12.  The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribed policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers.  ROPMA was implemented on 1 October 1996, and it established that the effective date of promotion and date of rank will be the date the officer is assigned to a higher graded position providing he/she meets all 

other qualifications for promotion.  The act further specifies that the effective date of promotion may not predate the approval, by the President, of the board results.

13.  Army Regulation 135-155, prescribed the policies and procedures for promotion of Reserve officers.  The regulation specifies that officers in the grade of captain may be eligible for promotion consideration to major by a PVB upon completion of 4 years maximum time in grade.  Unit officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available to serve in the position for which considered.

14.  This regulation further specifies that officers selected for promotion by a PVB will have a promotion effective date and date of rank no earlier than the approval date of the board, or the date the officer is assigned to the position.

15.  Title 10, United States Code, section 14315(a) provides that a Reserve officer who is in the Army Reserve and is on the active-status list (RASL) in the grade of first lieutenant through lieutenant colonel is eligible for consideration for promotion to the next higher grade if the officer is occupying or, is available to occupy a position in the same competitive category as the officer and for which a higher grade than the one held by that officer is authorized.  

16.  Title 10, United States Code, section 14315(c) provides that officer who is on a promotion list as a result of selection for promotion by a PVB may be promoted at any time to fill the vacancy for which the officer was selected.

CONCLUSIONS:

1.  The applicant is entitled to adjustment to his promotion effective date and date of rank for major to 7 January 2001, the date the President approved the January 2000 PVB, based on his consideration, selection, and assignment to a major’s position.

2.  The applicant was considered and selected for promotion to major by the 2000 PVB; however, he could not be promoted to the grade of major in the position he was assigned to at the time the board convened, which was a captain’s position. Documentation submitted to AR-PERSCOM for request to fill the position to which the applicant was assigned incorrectly identified his position, which was authorized for fill by an officer of the grade of captain.  In support of the applicant’s request his commander confirmed that an administrative error resulted in the documents submitted to the June 2000 PVB referenced an incorrect position requiring an officer in the grade of captain.  The commander also stated that it was his intent that the applicant be considered for promotion to the grade of major in the position in which he was then assigned.
4.  This Board concludes that the applicant, through no fault of his own, was denied promotion to major upon his selection by the 2000 PVB.  Evidence clearly shows that it was the intent of the applicant’s command to promote him to major in the position he was occupying.  His unit erred in submitting documents that resulted in the PVB recommending him for promotion to his former captain position rather than to the major position to which he was actually assigned.

5.  It is also concluded that based on this correction, his name be removed from the March 2002 RCSB and reinstated to the 2000 PVB list.

6.  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:

	a.  by reinstating the individual concerned to the 2000 Position Vacancy Board List;

	b.  by showing he was promoted to major with a promotion effective date and date of rank of 7 January 2001, in the position of Legal Assistance Officer, with entitlement to additional pay or allowances based on this adjustment to his promotion effective date; and

	c.  by removing his name from the 2002 Major Reserve Components Selection Board.

BOARD VOTE:  

_jlp____  _aao_____  _phm__ _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		     _Jennifer L. Prater_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003094888	
SUFFIX		
RECON		
DATE BOARDED	20030923	
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.