PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           23 October 2003                   
	DOCKET NUMBER:  AR2003089630

	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. Joann H. Langston 		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 14 October 2001, the date he was assigned to a major’s position.

3.  The applicant states that the 2002 Major Reserve Army Promotion List, released on 16 July 2002, gave him a date of rank of 19 June 2002.  His date of rank for captain was 23 May 1995, and according to Title 10, United States Code, Section 1430(a), his date of rank for major should be no later than 7 years later.  He also states that his date of rank for major should be based on the date assigned to a major’s position.  In support of his request he submits copies of his promotion memorandums for captain and major, a memorandum for record (report date to major’s position) and his permanent change of station orders.

4.  The applicant’s military records show that while serving as a member of the USAR he was promoted to first lieutenant effective 25 May 1991. 

5.  He was promoted to captain effective 23 May 1995.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to major was 22 May 2002.

6.  The Officer Personnel Management Directorate, Army Reserve Personnel Command, verified that he was assigned to a major’s position effective 5 November 2001.

7.  He was considered and selected for promotion to major by the 2002 Reserve Components Selection Board (RCSB), which convened on 4 March and recessed on 3 April 2002.  The President approved the board results on 19 June 2002.

8.  He was promoted to major with a promotion effective date and date of rank of 19 June 2002.

9.  The Chief, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion that the applicant was promoted to captain effective 23 May 1995 and promotion to major required 7 years time in grade.  Therefore, the applicant’s promotion eligibility date was 19 June 2002.  He was considered for promotion by the 2002 RCSB and recommended for promotion.  This was the earliest board the officer was eligible to be considered by.  Under the Reserve Officer Personnel Management Act (ROPMA), an officer cannot be promoted until the President approved the board.  The President approved the 2002 RCSB on 19 June 2002.  He was issued a promotion memorandum on 16 July 2002, with a date of rank of 19 June 2002 since this was the day the President approved the board.  Based on this information, it was recommended the application be denied.

10.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 5 September 2003.  In his rebuttal, dated 15 September 2003, he stated that TIG is either not correctly stated as 7 years, or, in operation, the promotion section routinely violates this identified “requirement.”  Current regulation specifies an officer will be boarded in the 6th year TIG, with promotion occurring “not later than” 7 years.  Another officer is a specific case where, although the officer only had 6 years TIG, with a date of rank for captain of May 1996, this officer was boarded and now has a date of rank 19 June 2002, which is the same date of rank as the applicant (he had 7 years and 1 month TIG, not 6 years and 3 weeks).  He also stated that it is common knowledge that implementation of ROPMA often caused situations where soldiers were held beyond the MTIG.  Therefore, the promotion board zones of consideration were adjusted over a five-year period.  Major promotion zones were not adjusted in the first two years and therefore, caused his promotion to be beyond 7 years TIG through no fault of his own.  In conclusion, an adjusted date of rank to 5 November 2001, at a minimum, is reasonable.

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

12.  The ROPMA promotion boards and promotion zones of consideration for major were administratively delayed. 

13.  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.”

14.  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 unit officers will be promoted provided they are assigned to a position in the higher grade and the date of rank will be the date the officer attained the MTIG or the date on which assigned to a position in the higher grade.

CONCLUSIONS:

1.  The applicant is entitled to adjustment to his date or rank for major to 22 May 2002, his MTIG date, in accordance with ROPMA and promotion zones of consideration delays of the 2002 promotion board.

2.  The respective promotion zones of consideration 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 19 June 2002, 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 19 June 2002, with a date of rank of 22 May 2002, 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:  

__JHL ___  _AAO__  _MKP     _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    _Joann H. Langston ____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089630	
SUFFIX		
RECON		
DATE BOARDED	20031023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.