RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             APRIL 13, 2004                  
	DOCKET NUMBER:     AR2003091744

	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. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. Robert J. Osborn		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 her date of rank (DOR) to major (O-4) be changed from 19 December 2000 to 10 April 1998.

2.  The applicant states that the United States (US) Total Army Personnel Command (ARPERSCOM) recorded her change of address incorrectly in 1996 and the error was not discovered until September 2000.  She states that when correspondence was sent to the incorrect address and returned to ARPERSCOM no effort was made to locate her.  She goes on to state that in December 1996, she moved from Fayetteville, North Carolina, temporarily to Howell, Michigan in route to Australia.  She states that she provided ARPERSCOM with her permanent US address (which was her parent’s address) and her address in Australia, where she moved to in June 1997.  She states that 1998 a package was mailed to her in Australia, from her parent’s home in Michigan and that the contents of the package was paperwork for her to update her security clearance, which she did and the investigation was completed.  She states that she returned to the US in August 2000 and contacted her Personnel Management Officer (PMO) in September 2000, to check on Reserve unit vacancies.  She states that her PMO informed her that her records had been flagged and that she needed to get a physical.  

3.  The applicant further states that she was also informed that she was past her eligibility date for promotion and that her records had not been reviewed by a promotion selection board.  She states that she contacted her local recruiter to schedule an appointment for a physical and that during the course of the conversation she told the recruiter that she was looking for a Reserve vacancy.  She states that the Reserve recruiter contacted the National Guard recruiter in Michigan and she was informed that there was a captain (O-3) vacancy in the Detroit area.  She states that she completed her physical and applied for the O-3 vacancy and that in January 2001, the National Guard recruiter contacted her and told her that she was not selected for the O-3 position because their personnel officer had found that she was selected for promotion to O-4 back in 1997.  She states that when the information regarding her completed physical was entered into the system at the ARPERSCOM, she was automatically promoted to O-4.  She states that she had no idea why she had not received any notifications from ARPERSCOM until she received her Retirement Points Statement for September 2002, and noticed that part of her US address and part of Australia address had been combined.  She concludes by stating had she been properly notified that she had been selected for promotion to O-4 she definitely would have made the necessary arrangements to take her physical sooner. 

4.  The applicant provides in support of her application a copy of a web page showing the completion date of her security clearance investigation; her contact information; and her military data.  She also provides a copy of her Chronological Statement of Retirement Points, which reflects the part of her Michigan address and part of her Australian address; a printout of her qualifications for promotion; a memorandum dated 23 March 2001, from ARPERSCOM promoting her to O-4 effective 19 December 2000; and additional documentation maintained in her official record.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error, which occurred on 10 April 1998.  The application submitted in this case is dated 22 May 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant is currently a member of the United States Army Reserve (USAR) serving in the pay grade of O-4.

4.  A correction promotion memorandum dated 23 March 2001 was issued to the applicant by ARPERSCOM showing her DOR for major as 19 December 2000.  

5.  During the processing of this case a staff advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, ARPERSCOM who opined that the applicant was promoted to pay grade O-3 on 11 April 1991 and that promotion to pay grade O-4 required 7 years maximum time in grade (MTIG); therefore, her promotion eligibility date was 10 April 1998.  The ARPERSCOM stated that she was considered for promotion to O-4 by the 1997 Department of the Army Reserve Components Selection Board (RCSB) and recommended for promotion. The ARPERSCOM further stated that her physical had expired; therefore, her promotion was suspended pending a current physical.  The ARPERSCOM stated that the applicant passed her physical examination on 19 December 2000 and a promotion memorandum was issued on 23 March 2001 with a DOR of 19 December 2000.  The ARPERSCOM recommended that the promotion memorandum be corrected to show that her DOR as 10 April 1998 since she met the MTIG and that 19 December 2000, remain her effective date for promotion.

6.  A copy of the advisory opinion was forwarded to the applicant on 15 October 2003, for her information and possible rebuttal.  To date, there has been no response from the applicant.

7.  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.

8.  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.

9.  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.  

10.  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.”

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is entitled to an adjustment to her DOR to major to 10 April 1998, the date that she met the MTIG requirements for promotion to major.

2.  The applicant’s contentions have been noted.  However, it was her responsibility as a member of the USAR to insure that her records were kept up to date.  She was considered and recommended for promotion by the 1997 
RCSB and by her own admission she did not know until September 2000.  It does not appear that she made any attempts to contact ARPERSCOM periodically so that she could be kept informed of her status.

3.  The effective date of promotion shall remain as 19 December 2000, the date that she passed her physical examination, and the applicant is not further entitled to additional pay and allowances for the DOR adjustment.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

ra______  rjo   _____  ym______  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that she was promoted to major effective 19 December 2000, with a DOR of 10 April 1998, with no further entitlement to additional pay or allowances based on this adjustment. 

		____Roger W. Able____
		        CHAIRPERSON

INDEX

CASE ID	AR2003091744	
SUFFIX		
RECON		
DATE BOARDED	20040413	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000.0000/PROMOTION	
2.  315	131.0500.0000/DATE OF RANK	
3.		
4.		
5.		
6.