PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 August 2000                  
	DOCKET NUMBER:   AR1999029429

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson 		Member	
	Mr. Kenneth W. Lapin		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 reconsideration of her earlier application to correct her records by changing her date of rank and effective date of rank to 13 February 1997, her promotion eligibility date. 

3.  She contends that an injustice arises because a fellow officer, who used her application as a model, received greater relief. 

4.  Incorporated herein by reference are the Proceedings of the Board’s 
17 March 1999 action when it previously reviewed her request and granted partial relief.

5.  The previous Boards decided the cases differently by giving greater emphasis to different (and apparently conflicting) provisions of the Reserve Officer Personnel Management Act (ROPMA).  The panel deciding this applicant’s case decided that it was bound by the ROPMA provision that effective date of rank adjustment was limited by the date of promotion list approval date. The panel in the other case took note of the aforementioned restriction but gave greater weight to another provision that requires officers to be considered early enough so that, if selected, they may be promoted on their promotion eligibility date. 

CONCLUSIONS:

1.  The ABCMR decides applications on a case by case basis.  Each panel is autonomous and there is no requirement to decide even apparently identical matters of discretion in the same manner.  

2.  An injustice would exist in similar cases if an officer who had previously been junior by virtue of a later date of rank achieved earlier date of rank to an officer who was previously senior.  However that is not the case here.  

3.  Two separate panels looked at the same legislation and, acted within their discretion, by giving preeminence to separate requirements that were in conflict in these instances. 

4.  However this panel notes that the law actually provides only that a subject officer may not be paid if a date of rank is adjusted to a date earlier than the promotion list approval date.  Therefore, the applicant’s date of rank should be adjusted to her promotion eligibility date even though law precludes her from receiving an adjustment in pay.  Nevertheless, an injustice does arise because her promotion eligibility date is effected.

5.  In view of the foregoing, correcting the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

1.  That all Department of the Army records related to this case be corrected by changing the date of rank of the individual concerned to 13 February 1997 and by adjusting her promotion eligibility date accordingly.  

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___EW__  ___MVT_  ___KWL_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Edward Williamson_____
		    CHAIRPERSON

INDEX

CASE ID	AR1999029429	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	MODIFY	
REVIEW AUTHORITY		
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.