PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           16 October 2003
	DOCKET NUMBER:  AR2003087418

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Mae M. Bullock		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 the rank of major and promotion eligibility date (PED) be adjusted to 25 June 2000, with entitlement to all back pay and allowances.

3.  The applicant states that he was selected for promotion to the rank of major by a Department of the Army Standby Advisory Board (STAB) and was informed that his DOR would be 25 June 2000.  However, when his orders were published, his DOR and PED was established as 13 November 2002.  He continues by stating that he was serving with the New Jersey Army National Guard (NJARNG) and transferred to the United States Army Reserve (USAR) on 1 November 2002 and was subsequently mobilized.  He further states that when he inquired about his DOR, USAR officials stated that they could not change it because he was a member of the NJARNG.  When he inquired of National Guard officials he was informed that because he was no longer a member of the National Guard, nothing could be done unless he returned to the National Guard. 

4.  The applicant’s military records show that he was commissioned as a second lieutenant in the New York Army National Guard (NYARNG) on 30 July 1987.  He was promoted to the rank of first lieutenant on 15 September 1989 and to the rank of captain on 2 September 1993.  In January 2000, he transferred to the NJARNG and on 29 November 2001, he submitted a request to delay his mandatory promotion to the rank of major for a period of 3 years.  His request was approved on 1 December 2001 and he was informed that at the end of his promotion delay period or any time earlier if he so requested, he would be promoted as a Reserve Officer of the Army, his Federal Recognition would be terminated and he would be transferred to the USAR and be promoted.

5.  On 2 April 2002, the Total Army Personnel Command (ARPERSCOM) in St. Louis, Missouri, published a memorandum of eligibility for promotion as a Reserve commissioned officer not on active duty.  It indicates that the applicant was selected for promotion by a STAB adjourning on 26 June 2001 and that while his DOR should be 25 June 2000, the earliest DOR he could have under the Reserve Officer Personnel Management Act was the adjourning date of the board (26 June 2001).

6.  On 1 November 2002, he was honorably discharged from the NJARNG and was transferred to a USAR troop program unit in New Jersey to accept a preventive medical officer position.  

7.  On 2 January 2003, a memorandum of promotion was published which promoted the applicant to the rank of major with an effective date and DOR of 13 November 2002.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers of the USAR.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the years required in the lower grade (MYIG) requirement for promotion to MAJ is 7 years.

9.  Section III (Dates of Promotion) of the regulation provides the procedures for computing promotion effective dates of all Reserve Component (RC) officers.  It states, in pertinent part, that unless otherwise entitled by law, that antedating of either the effective date of promotion or the PED will not entitle an RC officer to increased pay and allowances.  However, it does establish that the PED and DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade.  Further, it states that an officer’s PED will become his DOR upon promotion and this date will be used to establish the relative seniority for officer’s holding the same rank.  Finally, it states that DOR will be used to establish the officer’s PED to the next higher grade. 

10.  Title 10 of the United States Code, section 14304 (10 USC 14304) provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law.  Paragraph (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 MYIG 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.  This provision of the law establishes the MYIG for CPT going to MAJ as 7 years. 

11.  A separate provision of the law, 10 USC 12203 establishes, in effect, that 
RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President.  It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

CONCLUSIONS:

1.  Although the evidence of record does not indicate why the applicant requested a delay of his promotion to the rank of major, it is reasonable to presume that he was not occupying a major's position at the time he was selected.
2.  The Board also finds it reasonable to presume that such was the case when he was selected by a STAB.  Accordingly, he could not have been promoted unless he was serving in a major's position or had reached his mandatory promotion date based on MYIG.

3.  Inasmuch as the STAB established a DOR of 25 June 2000, which was prior to his September 2000 MYIG (promoted to captain in September 1993), he should be allowed to retain that DOR, which also should be established as his PED for consideration to the next higher grade.

4.  Although the Board finds a legal basis to support adjusting the applicant’s DOR and PED and concludes that this action would be appropriate, this does not, by law and regulation, entitle the applicant to any additional back pay or allowances.  

5.  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 showing the DOR to major and PED of the individual concerned is 25 June 2000.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___ao___  __hof ___  __mb ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087418	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/10/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  315	131.0500/DOR	
2.		
3.		
4.		
5.		
6.