RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            22 January 2004                  
	DOCKET NUMBER:   AR2003090382

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ronald J. Weaver		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his date of rank for first lieutenant (1LT) be adjusted to 8 May 1996; that his records be considered by a special selection board (SSB) for promotion to captain under 1999 and 2000 criteria; and, based on selection by such SSB, that his date of rank to captain (CPT) be adjusted accordingly.

2.  The applicant states that when he was appointed on 8 May 1998, he was given 4 years of constructive credit applicable to the date of his appointment as a 1LT in the U. S. Army Reserve (USAR).  Therefore, his date of rank for 1LT should be 8 May 1996.  He became educationally qualified when he completed the Judge Advocate Officer Basic Course in September 1998.  He was promoted to CPT effective 1 March 2002.  However, the error with his 1LT date of rank caused his date of rank for CPT to be later than it would have been had that error not occurred.

3.  The applicant provides his appointment orders; his oath of office; his Judge Advocate Officer Basic Course diploma; and his CPT promotion memorandum as supporting evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant was appointed a commissioned officer in the USAR effective    8 May 1998 in the rank of 1LT in the Judge Advocate General's Corps (JAGC).  He was awarded 4 years of constructive service credit.

2.  The applicant completed the Judge Advocate Officer Basic Course on          25 September 1998.  He was assigned to a captain's position on 1 April 2000.

3.  The applicant was promoted to CPT in the USAR effective 1 March 2002.  The promotion board had convened on 13 November 2001 and recessed on     14 December 2001.

4.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), version effective 1 September 1994, states, in chapter 3, section IV that persons receiving original appointments as Reserve officers of the Army with assignment to the JAGC will be appointed to the highest grade as shown in Table 3-3.  Table 3-3 states that if commissioned service credit of 3 years or more but less than 7 years is awarded, then appointment grade is 1LT.  Paragraph 3-12b states that the date of rank of an officer commissioned in the Reserve of the Army and assigned to the JAGC is the date of appointment.  The date of rank will further be backdated by the period of commissioned service credit awarded.  This is in excess of the amount used to establish the officer's appointment grade.
5.  Effective 1 October 1996, the Reserve Officer Personnel Management Act (ROPMA) required that second lieutenants serve maximum years of service in grade (MYIG) of 2 years before promotion to 1LT.  In effect, this changed Table 3-3 of Army Regulation 135-100 to read if commissioned service credit of 2 years or more…is awarded, then appointment grade is 1LT.

6.  Title 10, U. S. Code, section 14304 states that officers shall be placed in the promotion zone for that officer’s grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified 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.  The maximum years of service for promotion to the grade of CPT is 5 years.

7.  Title 10, U. S. 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.

8.  ROPMA, enacted effective 1 October 1996, required among other things that second lieutenants (2LTs) serve an MYIG of 2 years before promotion to 1LT and 1LTs serve an MYIG of 5 years before promotion to captain.  The Reserve Officer Personnel Act in effect prior to ROPMA required completion of 3 years as a 2LT and 4 years as a 1LT before promotion to captain.

9.  The ROPMA promotion boards for captains were administratively delayed.  The Presidential approvals of the results of the pertinent promotion boards were also administratively delayed.  

10.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) acknowledged that pertinent Army agencies had agreed that the faulty promotion policy for promotion to captain should be revised and that actions would be initiated for this purpose.  

11.  Current promotion policy also requires completion of the necessary military education (officer basic course), civilian education (baccalaureate degree), and verification of assignment to a captain position as appropriate.

12.  In the processing of this case, an advisory opinion was obtained from the    U. S. Army Human Resources Command, Office of Promotions, Reserve Components.  That office noted that the applicant accepted the oath as a Reserve officer on 8 May 1998 and was given 4 years of constructive service credit.  Based on the overage of 2 years, his date of rank to 1LT was adjusted to 8 May 1996.  The time in grade requirement to captain is 5 years.  The applicant was selected for promotion by the 2001 Department of the Army Reserve Components Selection Board that was approved by the President on 1 March 2002.  He was subsequently promoted to captain with a date of rank of 1 March 2002 in accordance with the regulation, which states that if an officer's maximum time in grade date is before the approval date of the board, his promotion date and effective date will be no earlier than the approval date of the board which recommended him for promotion.

13.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's date of rank to 1LT had already been adjusted to 8 May 1996 and this portion of his request will not be further addressed.

2.  The provisions of law state that an officer cannot be promoted earlier than the date the President approved the results of the selection board.  In the applicant’s case, he was selected for promotion to captain by the 2001 Department of the Army Reserve Components Selection Board that convened on 13 November 2001 and was approved by the President on 1 March 2002.

3.  However, the provisions of law also state that an officer will be considered for promotion well in advance, so that if recommended, he would be promoted on or before the date that he completes the maximum years of service, which in the applicant’s case was a combined MYIG of 7 years.  The applicant completed      7 years MYIG as a 1LT on 7 May 2001, he was in a captain's position on that date, and he had completed the required military and civilian education.

4.  Because the applicant should have been considered for promotion to captain well in advance of 7 May 2001, it would be appropriate to submit his records to a duly constituted SSB for reconsideration for promotion to captain under 2000 criteria.

BOARD VOTE:

__jl____  __aao___  __rjw___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  submitting his records to a duly constituted SSB for reconsideration for promotion to captain under 2000 promotion criteria; and

     b.  that if he is selected for promotion his records be further corrected by promoting him to captain with a date of rank and effective date of 7 May 2001.

2.  That if he is not selected for promotion by the SSB, he be notified accordingly and his promotion to captain effective 1 March 2002 will remain in effect.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to submitting his records to an SSB for reconsideration for promotion to captain under 1999 promotion criteria.

		___JoAnn Langston__
		        CHAIRPERSON

INDEX

CASE ID	AR2003090382	
SUFFIX		
RECON		
DATE BOARDED	20040122	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.