PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  31 August 2000
	DOCKET NUMBER:  AR1999034156

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Ms. Barbara J. Ellis		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 that the effective date of his promotion to lieutenant colonel be corrected from 29 May 1998 to 31 January 1998.

3.  The applicant states his belief that a Reserve major recommended for promotion to lieutenant colonel will be promoted on completion of the required years of service in the lower grade without regard to a position vacancy in accordance with Title 10, USC, section 14304.  Under the provisions of the Reserve Officer Personnel Management Act (ROPMA), seven years is the maximum time required and he completed the required service on 31 January 1998.

4.  The applicant’s military records show that he was commissioned a second lieutenant from ROTC and entered active duty on 29 March 1979.  He was promoted to major effective 1 February 1991.  He was separated from active duty and transferred to the USAR effective 29 September 1992.  He entered the USAR Active Guard/Reserve (AGR) program in the grade of major on 1 October 1995.  He was assigned to a position graded as lieutenant colonel effective 25 August 1997.  

5.  The applicant was considered by the 1997 Reserve Component Lieutenant Colonel APL selection board that adjourned on 31 October 1997.  The President of the United States approved the results of the selection board with his signature on 29 May 1998.  On 18 June 1998 the Total Army Personnel Command at St. Louis notified the applicant that he was promoted to lieutenant colonel effective 29 May 1998.

6.  Title 10, section 12011 Authorized strengths: provides the maximum number, by law, of major through colonel who may be on active duty in the AGR program in that grade.

7.  Title 10, section 12203, Commissioned officers: appointment, how made, provides that the appointment of Reserve officers in commissioned grades of lieutenant colonel and below shall be made by the President alone.

8.  Title 10, Section 14304, Eligibility for consideration for promotion: maximum years of service in grade, subsection (a) states, in effect, 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 in the grade of major are 7 years.

9.  Title 10, Section 14308(c)(2), states:  “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.”

10.  Army Regulation 135-155 provides the policy for selection and promotion of Reserve Component officers.  It provides that the effective date of promotion of an AGR officer, selected for promotion, will be the date the mandatory service and promotion eligibility requirements are completed, provided the officer is serving in a duty assignment requiring a higher grade than currently held by the officer.  A historical report provided by OCAR indicated that he was still assigned to a lieutenant colonel position on 26 January 1998 and the OCAR confirmed that they have yet to reach the strength ceiling on AGR lieutenant colonels limited by Title 10, section 12011.

11.  In similar cases the office of The Judge Advocate General has previously opined that USAR AGR officers, who are serving in positions requiring the grade to which they will be promoted, will have an effective date of rank in the higher grade as the date of issuance of the promotion memorandum.  Additionally, the issuance of the promotion memorandum may not precede the approval by the President of the promotion board results.  The previous authority to antedate the effective dates of Reserve officer promotions (Title10, USC section 3363 (d)) was repealed with the passage of the Reserve Officer Personnel Management Act (ROPMA).

CONCLUSIONS:

1.  The provisions of law state that an officer cannot be promoted earlier than the date the President approved the results of the selection board.

2.  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 this instance, is 7 years.  The applicant completed 7 years of service as a major on 31 January 1998.

3.  The applicant was assigned to a position requiring the higher grade and his promotion was not affected by the involuntary delay based on strength of that grade on active duty in the AGR program.  The delay in his promotion was administrative in nature.

4.  The officer’s records should be changed to reflect a date of rank of his promotion to lieutenant colonel as 31 January 1998.  He is not entitled to back pay and allowances in the grade of lieutenant colonel, 0-5, from that date.

5.  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 showing that the individual concerned was promoted to lieutenant colonel as a Reserve commissioned officer of the Army in Active Guard/Reserve status effective 29 May 1998 with a date of rank of 31 January 1998, with his time in grade computed from 31 January 1998.

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

BOARD VOTE:  

___sc__  ___js__  ___ra____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Samuel A. Crumpler__
		        CHAIRPERSON

INDEX

CASE ID	AR1999034156	
SUFFIX		
RECON		
DATE BOARDED	20000831	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 	131.04	
2. 	131.05	
3.		
4.		
5.		
6.