MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:  17 May 2000
	DOCKET NUMBER:   AR1999034805

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Fred N. Eichorn		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he receive backpay from 31 May 1996 in the rank of lieutenant colonel (LTC).

APPLICANT STATES:  That his date of rank for LTC was 31 May 1996, due to an approved appeal.  He received orders promoting him to LTC and the Board’s decision in 1999.   He submits copies of his orders dated 30 September 1996, 2 September 1997, 10 September 1999, 2 December 1999 and promotion memorandums dated 30 June 1999 and 6 December 1999 in support of his request.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned in the Regular Army as a second lieutenant effective 2 June 1976.  He attained the grade of captain effective 12 March 1982.

He was discharged effective 19 July 1982 and transferred to the USAR Control Group (Reinforcement).  He was promoted to major effective 1 June 1989.  Based on the required 7 years time in grade, his promotion eligibility date for LTC was 31 May 1996.

He was considered and non-selected for promotion to LTC by the 1995 and 1996 Reserve Components Selection Boards (RCSB’s).

He was transferred to the Retired Reserve effective 18 August 1997 for his second non-selection for promotion.

On 1 May 1999, he applied to the Army Board for Correction of Military Records for promotion reconsideration to LTC based on material error.

He was considered and selected for promotion to LTC by a special selection board (SSB) which convened on 8 October 1998 under 1995 criteria.

On 10 September 1999, orders were published revoking his transfer to the Retired Reserve and he was assigned to a Reserve unit.

On 2 December 1999, he was reassigned in the Reserve to a LTC position.  

A promotion memorandum was issued on 6 December 1999 giving him an effective date of 2 December 1999 and dates of rank of 31 May 1996, his promotion eligibility date.  He was also advised that pay and allowances will be effective on the effective date and time in grade for promotion to the next higher grade will be computed from his date of rank.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that an officer promoted to the next higher grade as the result of the recommendation of a SSB, the date of rank and effective date will be the same as if the original mandatory selection board had recommended the officer.

The regulation further provides that an officer who is not attached to a position in the higher grade will be promoted effective on the date of reattachment to a higher graded position.  The promotion eligibility date becomes the officers’ date of rank.

The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers.  The law became effective 1 October 1996.  Under ROPMA, the effective date of promotion will be the date the officer is assigned to a higher grade position providing he or she meets all other qualifications for promotion.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to back pay from 31 May 1996.  He has not shown error, injustice or inequity for the relief he now requests.

2.  The applicant was recommended for promotion to LTC by a SSB under 1995 criteria, however the applicant was not assigned to the higher grade position until 2 December 1999.

3.  The Board further notes that pertinent regulations clearly state the effective date of promotion will be the date the officer is assigned to a higher grade position and his promotion could not be accomplished until 2 December 1999, the date he assumed a LTC’s position.

4.  The Board further notes that the applicant was not in a promotable status on or before 2 December 1999.

5.  The Board concludes in this case that the applicant has not shown he was previously positioned, or would have been positioned, into a LTC position before 2 December 1999.  He served as a major during the contested period of time and was paid and credited accordingly.  Positioning into a higher graded position, as in promotion selection, is competitive and cannot be presumptive.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_CF____  ___RW___  __FE____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999034805	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000517	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.