PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            21 October 2003                  
	DOCKET NUMBER:   AR2003087977

	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 correction to his date of rank for major to 5 July 1998, with entitlement to back pay.

3.  The applicant states that he was promoted to major effective 3 January 2000, but his promotion eligibility date (PED) was 31 July 1998.  On 5 July 1998, he was serving in a major duty assignment.  His promotion to captain was effective 1 August 1991, making his seven years maximum time in grade (MTIG) effective 31 July 1998.  Therefore, according to Army Regulation 135-155 he was in the correct status, duty position, and MTIG in July 1998.  He also states that administrative procedures with his transfer to the Active/Guard Reserve (AGR) program and the late release date of the 1999 promotion list were beyond his control.  The Army Board for Correction of Military Records (ABCMR) has ruled favorably on this issue in the past.  In support of his application he submits copies of his notification of promotion status, his AGR assignment orders to a major’s position, his promotion orders for major, and an ABCMR Proceedings on another officer who was granted relief.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 20 February 1987 and entered on active duty the same day.  He was promoted to first lieutenant effective 20 February 1989 and to captain effective 1 August 1991.

5.  He was released from active duty effective 3 July 1998 and transferred to the USAR Control Group (Reinforcement).

6.  He was assigned to the AGR program and a major’s position effective 5 July 1998.

7.  Based on the required 7 years MTIG for promotion to major, his MTIG date was 31 July 1998.

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

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

10.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, expressed the opinion that the applicant was selected for promotion to major by the 1999 RCSB with a PED of 31 July 1998.  He was subsequently promoted on orders dated 14 January 2000 with a date of rank of 

3 January 2000, the approval date of the board.  The applicant was in a higher graded position on his PED; therefore, it was recommended that his promotion order be corrected to reflect a date of rank of 31 July 1998.  In view of the facts presented it was recommended that the applicant’s request be approved.

11.  The advisory opinion was forwarded to the applicant for acknowledgment/
rebuttal on 12 May 2003.  He concurred on 15 May 2003.

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 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. 

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

14.  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.  

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 adjustment to his date or rank for major to 31 July 1998, 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 31 July 1998, 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:  

_MHM__  _FCJ____  _WDP___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		      _Melvin H. Meyer____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087977	
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.