PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            22 August 2000
	DOCKET NUMBER:   AR1999031906

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lagin		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, in effect, that his date of rank (DOR) to Major (MAJ) be backdated and that his promotion eligibility date (PED) be adjusted to 
31 January 1997.  

3.  The applicant states, in effect, that he was selected for promotion to MAJ by the 1997 Reserve Component Selection Board (RCSB) and that the PED and DOR granted him as a result of this promotion should be 31 January 1997.  He indicates that based on the promotion memorandum issued him by the Army’s Reserve Personnel Command (ARPERSCOM), dated 3 October 1997, his DOR to MAJ was established as 2 October 1997, which is 7 months later than it should be.  He claims that a correction to his DOR is supported by an enclosed legal opinion from The Judge Advocate General (TJAG).  He also points out that in paragraph 5 of the opinion, TJAG opines that if an officer has never been considered for promotion sufficiently before the officer completes the service prescribed in Title 10 of the United States Code, Section (10 USC) 14304(a), resulting in an effective date of promotion and DOR that is beyond the officer’s maximum time-in-grade date, and the officer has not been previously 
non-selected by a board convened under 10 USC 14101(a), the officer may petition this Board for an adjustment of his or her DOR.

4.  The applicant’s military records show that he was commissioned a 
2nd lieutenant (2LT) in the Signal Corps (SC) of the USAR on 18 May 1985.  On 
14 July 1985, he entered active duty and was promoted to the rank of Captain (CPT) on 1 February 1990.  He continued to serve until 1 August 1994, when he was released from active duty and reassigned to the USAR Control Group (Reinforcement), St. Louis, Missouri.

5.  The applicant enclosed a TJAG opinion which stated, in effect, that the effective date and DOR of a Reserve Component (RC) officer, unless otherwise provided for by law, may not precede the issuance of the promotion memorandum announcing the promotion selections published and approved by the RCSB President.  It also indicates that the authority to antedate the effective dates of RC officer promotions was repealed, without replacement, by the Reserve Officer Personnel Management Act (ROPMA).

6.  TJAG did allow that if an officer has never been considered for promotion sufficiently before he or she completes the service prescribed in 10 USC 14304(a), resulting in an effective date of promotion and DOR that is beyond the officer’s maximum time-in-grade date, and the officer has not been previously non-selected by a board convened under 10 USC 14101(a), the officer may petition this Board for an adjustment of his or her date of rank.

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers (WO) of the USAR.  

8.  Table 2-1 of this regulation outlines the service requirements for promotion.  It indicates that the years required in the lower grade, time-in-grade requirement, for a mandatory board is 7 years; and the years of commissioned service for a mandatory board is 12 years.  

9.  Section III (Dates of Promotion) provides the procedures for computing promotion effective dates of all RC officers.  It states, in pertinent part, unless otherwise entitled by law, that antedating of either the effective date of promotion or the PED will not entitle an RC officer to increased pay and allowances.  It also indicates that the PED and DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade.  It also indicates that an officer’s PED will become his DOR upon promotion.  It further states that this date will be used to establish the relative seniority for officer’s holding the same rank and that DOR will be used to establish the officer’s PED to the next higher grade. 

10.  10 USC 14304 (eligibility for consideration for promotion: maximum years of service in grade) (a) (consideration for promotion within specified times) states, in pertinent part, 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 convened under section 14101(a) of this title, far enough in advance of completing the maximum years of time-in-grade 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 table in this Title of the USC, which establishes the maximum time-in-grade requirements shows that the current maximum years of service in grade for CPT going to MAJ is 7 years.  

CONCLUSIONS:

1.  After carefully considering the evidence of record and the independent evidence submitted by the applicant, the Board concluded, based on the applicant’s DOR to CPT, 1 February 1990, that his DOR to MAJ and PED should be established as 31 January 1997.  This determination is made based on the provisions of 10 USC 14304 (a) which stipulates that the maximum years in grade for promotion to MAJ is 7 years. 

2.  Although the Board found the applicant’s DOR and PED to be in error, by law and regulation, this decision will not result in a change to the applicant’s authorized effective date of promotion and will not entitle him to any back pay and allowances.

3.  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 establishing the MAJ DOR and PED of the individual concerned as 31 January 1997.

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

BOARD VOTE:  

__mvt___  ___kwl __  ___elw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Edward Williamson____
		        CHAIRPERSON

INDEX

CASE ID	AR1999031906	
SUFFIX		
RECON		
DATE BOARDED	2000/08/22	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  21	102.0700	
2.		
3.		
4.		
5.		
6.