PROCEEDINGS

	IN THE CASE OF:           

	BOARD DATE:                14 August 2003                  
	DOCKET NUMBER:        AR2003087533

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Linda M. Barker		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.

3.  The applicant states that in accordance with Title 10, United States Code (USC), section 14304, the promotion memorandum dated 3 January 2000 requires the date of rank and effective date be adjusted to 20 May 1999, the date he completed the maximum years of service in grade.  In support of his application he submits copies of his promotion memorandums for captain and major.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 18 May 1985.  He was promoted to first lieutenant effective 21 May 1988.

5.  He was promoted to captain effective 20 May 1992.  

6.  He was ordered to active duty effective 12 December 1995.  He was separated from active duty effective 15 September 1996 and transferred to the USAR Control Group Individual Mobilization Augmentee (IMA).

7.  He was considered and selected for promotion to major by the 1999 Reserve Components Selection Board (RCSB), which convened on 2 March 1999 and recessed on 2 April 1999.  The President approved the board results on 3 January 2000.

8.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to major was 19 May 1999.

9.  The Officer Management Division, Army Reserve Personnel Command verified that he was assigned to the Active Guard/Reserve (AGR) program and a major’s position effective 26 September 1999.

10.  He was promoted to major with a promotion effective date and date of rank of 3 January 2000.

11.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion that the officer was promoted to captain on 20 May 1992 and promotion to major required 7 years time in grade; therefore, his promotion eligibility date was 19 May 1999.  He was considered and selected for promotion to major by the 1999 RCSB and recommended for promotion.  Under the Reserve Officer Personnel Management Act (ROPMA), an officer cannot be promoted until the President approves the board.  The President approved the board on 3 January 2000 and the results were released on 14 January 2000.  He was issued a promotion memorandum on 14 January 2000, with a date of rank of 3 January 2000 since this was the day the President approved the board.  Based on this information, it was recommended the application be denied.

12.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 20 May 2003.  In his rebuttal dated 25 May 2003, he stated that the staff advisory opinion was just that an “opinion” and it was not only an opinion, but much of the information was omitted and twisted around.  The staff advisory opinion claims that he did not occupy the position requiring the higher grade until 26 September 1999, when he first entered the AGR.  What they failed to mention was up until 25 September 1999, he was still an Individual Mobilization Augmentee (IMA) and as an IMA he did not have to occupy a position in the higher grade, the promotion is automatic.  Whether he would have been pinned the rank on 20 May 1999 or 27 September 1999, his date of rank would not have changed, the promotion date would have been the same no matter when he pinned on the rank of major.  The 26 September 1999 date the staff advisory opinion is referring to is totally irrelevant.

13.  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 MTIG for a captain is 7 years, and that an officer selected for promotion to major the first time he/she is considered will be promoted on or before the date that he/she completes the MTIG. 

14.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve or IMA.  Promotion cannot be effective prior to approval of respective boards by the President.

15.  The ROPMA promotion boards for major 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, the boards should have been approved approximately 100 days after their respective recess dates.  

16.  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.”

17.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that time in grade for a commissioned officer is 7 years in the grade of captain for promotion to major.  The regulation also specifies that Reserve IMA officers will be promoted on or before the date the officer attained the MTIG.

CONCLUSIONS:

1.  The applicant is entitled to adjustment to his date or rank for major to 19 May 1999, in accordance with ROPMA and based on the processing delays of the 1999 promotion board.  

2.  The respective promotion board and the processing of the promotion board results were 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 3 January 2000, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the date of rank adjustment.

4.  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 individual concerned was promoted to major effective 3 January 2000, with a date of rank of 19 May 1999, with no further entitlement to additional pay or allowances based on this adjustment.

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

BOARD VOTE:  

_JEA____  __LMB__  _RVO___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O'Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2003087533	
SUFFIX		
RECON		
DATE BOARDED	20030814	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.05	
3.		
4.		
5.		
6.