PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR1999033966

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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 he be promoted to the rank and pay grade of Major/0-4 (MAJ/0-4) effective 22 August 1999.

3.  The applicant states, in effect, that he left active duty in the Active Component (AC) of the Army in order to accept an active duty MAJ position in the United States Army Reserve (USAR) in an Active Guard/Reserve (AGR) status.  Prior to his leaving the AC he was considered for promotion to MAJ by the Fiscal Year (FY) 1999 Army Competitive Category (ACC) promotion selection board.  He claims that prior to deciding to leave the AC for the AGR program he contacted several branches of Army Reserve Personnel Command (ARPERSCOM) to inquire as to whether or not the results of the active duty ACC promotion list to MAJ would be honored by ARPERSCOM if he were selected for promotion by that board.  He claims that several individuals at various ARPERSCOM agencies told him that the list would be honored if he were selected for promotion and was at that time serving in a MAJ position in an AGR status.  He also states that based on the advice and briefings he received from ARPERSCOM officials, and the requirements for entering the AGR program, he elected to leave the AC prior to the release of the ACC promotion list.  In addition, he indicates that he is currently serving in an authorized MAJ position.

4.  The applicant’s military records show that he was appointed a 2nd Lieutenant in the United States Army Reserve (USAR) on 27 May 1987 and that he entered active duty as a member of the AC on 4 September 1987.  While serving with the AC he was promoted to the rank of Captain (CPT) on 1 April 1992.  He served on active duty with the AC until he was released from active duty (REFRAD) on 
21 August 1999.  

5.  On 22 August 1999, the applicant entered into an AGR status and he is currently serving in that status on active duty.  He is assigned to the 91st Division 
(Training Support), Fort Lewis, Washington, and is performing duties, in an authorized MAJ position as a Plans Officer with the 4th Brigade of the 
91st Division.  

6.  On 20 April 1999, while the applicant was still serving on active duty with the AC, the FY 1999 MAJ ACC promotion selection board convened to consider officers for promotion to the grade of MAJ.  The Board adjourned on 19 May 1999 and the “FY 99 Promotion List for Major, Army Competitive Category” memorandum containing the board results and the list of officers selected for promotion to MAJ was dated 11 August 1999, prior to the applicant’s AC REFRAD.   This memorandum was not released and published until 7 October 1999, which was subsequent to the applicant’s AC REFRAD.

7.  This promotion memorandum contained specific instructions that indicated that the commander of the Army Personnel Command (PERSCOM) was responsible to remove from the list those officers who separated or retired prior to being promoted from the list, without provision for reinstatement if they subsequently return to active duty.

8.  On 2 March 1999, the 1999 Reserve Component (RC) MAJ promotion selection board convened, to consider RC CPTs with a DOR of 16 May 1993 or earlier for promotion to MAJ.  The board adjourned on 2 April 1999, prior to the applicant’s AC REFRAD.  However, the promotion list was not approved by the President until 3 January 2000 or released by ARPERSCOM until 14 January 2000, subsequent to the applicant’s entering the RC in an AGR status. 

9.  A panel of this Board recently reviewed the case of an officer in a similar situation and granted relief.  In fact, this officer included the applicant’s name in his application and indicated that they were both impacted by the same circumstances.  This officer also stated that he and the applicant had both been given the same briefings and advice from ARPERSCOM officials in regard to their AC promotion being valid once they transferred to the RC, if their names were included on the ACC promotion list.  In addition, this officer also commented that he and the applicant had been selected for promotion by the same AC promotion board and had transferred from the AC to the AGR program on the same date.  

10.  In this similar case, relief was granted, in large part, based on the  recommendation of the Chief of the RC Promotions Branch at ARPERSCOM.  In his recommendation he admitted that the officer in question had not been given competent advice by ARPERSCOM agencies in regard to the effect the Reserve Officer Personnel Management Act (ROPMA) would have on his promotion to MAJ.  In addition, he confirmed that this officer had been told that his name would be transferred to the RC promotion list upon his separation from the AC.  His recommended solution, to remedy the injustice to that officer that resulted from his receiving poor advice, was to correct the officer’s record to show he was selected for RC promotion to MAJ. 

11.  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 of the USAR.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the years required in the lower grade (MYIG) requirement for promotion to MAJ is 7 years. 

12.  Section III (Dates of Promotion) of the regulation provides the procedures for computing promotion effective dates of all RC officers.  It states, in pertinent part, that 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.  However, it does establish that the PED and DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade.  

13.  This section further states that an officer’s PED will become his DOR upon promotion and this date will be used to establish the relative seniority for officers holding the same rank.  Finally, it states that DOR will be used to establish the officer’s PED to the next higher grade. Under this policy, based on his DOR to CPT of 1 December 1992, the applicant’s RC promotion eligibility date (PED) for MAJ would be established as 30 November 1999. 

14.  Title 10 of the United States Code, section 14304 (10 USC 14304) provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law.  Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone 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 MYIG 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.  This provision of the law establishes the MYIG for CPT going to MAJ as 7 years. 

15.  Paragraph (b) of 10 USC 14304 states, in effect, that an RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law. 

16.  A separate provision of the law, 10 USC 12203 establishes, in effect, that 
RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President.  It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

CONCLUSIONS:

1. After carefully examining the evidence or record and the independent evidence submitted by the applicant, the Board finds that it is reasonable to conclude that an injustice to the applicant resulted from his receiving incorrect information from official ARPERSCOM sources.  Therefore, the Board finds relief is warranted in this case. 

2.  The Board, however, does not concur with the applicant’s assertion that he should be promoted to MAJ, effective 22 August 1999, the date he transferred to AGR status, because he was on the AC MAJ promotion list at that time.  The injustice to the applicant resulted from the advice he received from ARPERSCOM officials which placed him at a disadvantage with his RC contemporaries, and was not the result of the AC promotion process.

3.  The Board determined that it was appropriate for the applicant to be removed from the AC promotion list.  The AC policy was clearly delineated in the FY 99 Promotion List for MAJ, ACC memorandum, which stated, in effect,  that officers on the promotion list be removed if they separated or retired prior to being promoted, without provision for reinstatement if they subsequently returned to active duty.  The applicant clearly fit this category as a result of the voluntary decision to leave the AC prior to the release of the promotion list and the Board finds no injustice associated with this action.  

4.  The injustice in this case clearly was the result of improper advice and guidance received from RC officials and the effect of this was the applicant being placed at a competitive disadvantage with his RC contemporaries.  Therefore, the Board finds that the appropriate remedy to make the applicant whole should come from RC policy.  

5.  The Board finds the appropriate remedy in this case is contained in the recommendation provided by the Chief of RC Promotions, ARPERSCOM, in a similar case recently reviewed by this Board.  This recommendation suggested that the appropriate correction to the record in this type of case would be to show the officer was selected for RC promotion to MAJ. 

6.  Therefore, in the interest of justice and equity and as an exception to policy, the Board concludes it would be appropriate to remedy this documented injustice to the applicant by promoting him with his RC peers under the provisions of ROPMA.  This should result in his being added to the 1999 RC MAJ promotion list, as an exception to policy, and his being promoted as if he were on the original list.   

7.  The applicant should be promoted to the rank of MAJ, from the 1999 RC MAJ promotion list, effective, effective 3 January 2000, the date the President approved the list.  Based on his CPT DOR of 1 April 1992, his DOR to MAJ should be established as 31 March 1999, which also should be established as his PED for consideration to the next higher grade.  

8.  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:

a.  by adding the individual concerned to the 1999 RC MAJ promotion list;

b.  by promoting the individual concerned to the rank of MAJ effective 
3 January 2000; and 

c.  by showing the DOR to MAJ and PED of the individual concerned is 
31 March 1999.

2.  That the individual concerned be provided all back pay and allowances due as a result of his being promoted to the rank of MAJ, effective 3 January 2000.

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

BOARD VOTE:  

____lds__  __rvo ___  ___be___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR1999033966	
SUFFIX		
RECON		
DATE BOARDED	2000/10/17	
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.  310	131.0000	
2.		
3.		
4.		
5.		
6.