PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 October 2003                  
	DOCKET NUMBER:   AR2003087575

	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. Melvin H. Meyer		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones, II		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 adjustment to his date of rank for major to 1 January 2000.

3.  The applicant states that his date of rank for captain was 1 April 1992.  Upon leaving active duty for the Active/Guard Reserve (AGR) program his records should have been considered for the 1999 promotion board and not the 2000 promotion board.  In accordance with Army Regulation 135-155, an officer should be considered for selection by their 7th year of service.  In support of his application he submits copies of his officer record brief, his promotion orders for captain and major, and his assignment orders to a major’s position.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 28 May 1986.  He was promoted to first lieutenant effective 27 May 1989.

5.  He entered on active duty effective 13 September 1989 and was promoted to captain effective 1 April 1992.  Based on the required 7 years maximum time in grade (MTIG) for promotion to major, his MTIG date was 31 March 1999.

6.  The 1999 Major Reserve Components Selection Board (RCSB) convened on 2 March and recessed on 2 April 1999.

7.  He was released from active duty effective 31 July 1999 and transferred to the USAR Control Group (AGR).

8.  Officer Management Division, Army Reserve Personnel Command verified that he was assigned to an AGR major’s position effective 1 August 1999.

9.  He was considered and selected for promotion to major by the 2000 RCSB, which convened on 7 March and recessed on 6 April 2000.  The President approved the board results effective 19 July 2000.

10.  He was promoted to major effective 19 July 2000.

11.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion that the applicant was promoted to captain on 1 April 1992.  Promotion to major required 7 years time in grade, making his promotion eligibility date 31 March 1999.  The applicant was released from active duty on 31 July 1999.  Therefore, the applicant was not eligible for the 1999 RCSB.  Based on this date of rank, the earliest board the officer was eligible for was the 2000 RCSB.  The applicant was considered and recommended for promotion to major by the 2000 RCSB.  Under the Reserve Officer Personnel Management Act (ROPMA), an officer cannot be promoted until the President has approved the board.  The President approved the 2000 board on 19 July 2000 and the results were released on 10 August 2000.  The applicant was issued a promotion memorandum on 10 August 2000, with a date of rank of 19 July 2000.  It was recommended that the earliest date the applicant could receive was 1 August 1999, the date he went into the higher graded position as his date of rank and an effective date of 19 July 2000.

12.  The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 25 May 2003.  He did not respond.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  Paragraph 4-21d of the regulation specifies AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a higher graded position will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained MTIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

14.  The ROPMA, a 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 major 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.  Promotion cannot be effective prior to approval of respective boards by the President.

15.  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 correction to his date of rank for major to 1 August 1999, the date he was assigned to an AGR major’s position.

2.  The effective date of promotion shall remain as 19 July 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.

3.  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 major effective 19 July 2000, with a date of rank of 1 August 1999, with no further entitlement to additional pay or allowances based on this adjustment.

BOARD VOTE:  

_MHM__  _FCJ____  _WDP___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		      _Melvin H. Meyer_
		        CHAIRPERSON

INDEX

CASE ID	AR2003087575	
SUFFIX		
RECON		
DATE BOARDED	20031021	
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.