PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 October 2001                   
	DOCKET NUMBER:   AR2001060570

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Mr. Charles Gainor		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 his date of rank (DOR) to Major be changed to   31 August 1998.

3.  The applicant states that his DOR to Major should be 31 August 1998 based on the official release date of the calendar year 1998 (CY 98) Reserve Component Major Promotion Board.  Based upon his DOR to Captain, 1 August 1991, he should have been considered by the CY 98 Reserve Component Major Promotion Board but he was not.  His promotion orders show his DOR and effective date of promotion to Major as 3 January 2000. 

4.  The applicant's military records show that he was commissioned and entered active duty on 5 March 1987.  He was promoted to Captain on 1 August 1991.  The CY 98 Reserve Component Major Promotion Board convened on 24 March 1998.  He was released from active duty on 13 May 1998 and entered the U. S. Army Reserve. He was assigned to a Major’s position on 17 May 1998.

5.  The applicant was considered by the 1999 Reserve Component Major  Selection Board that convened on 2 March 1999 and adjourned 2 April 1999.  The President of the United States approved the results of the selection board with his signature on 3 January 2000.  On 14 January 2000, the U. S. Total Army Personnel Command at St. Louis, MO notified the applicant that he was promoted to Major in an Active Guard/Reserve (AGR) status effective 3 January 2000 with a DOR of 3 January 2000.

6.  Title 10, U. S. Code, section 12203 provides that appointments of reserve officers in commissioned grades above the grade of lieutenant colonel shall be made by the President, by and with the advice and consent of the Senate.  Appointments of reserve officers in commissioned grades of lieutenant colonel and below shall be made by the President alone.

7.  Title 10, U. S. Code, section 14304 states 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 to the grade of Major is 7 years.

8.  Title 10, U. S. Code, section 14308(c)(2) states that 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.

9.  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 and DOR in the higher grade as of 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 of Title 10, U. S. Code, section 3363(d) to antedate the effective dates of reserve officer promotions was repealed without replacement by the Reserve Officer Personnel Management Act (ROPMA).

10.  In the processing of this case, an advisory opinion was obtained from the   U. S. Total Army Personnel Command, Office of Promotions, Reserve Components.  That office recommended denial of the applicant’s request.  It noted that the applicant’s promotion eligibility date (PED) was 31 July 1998; however, he was not eligible to be considered by the CY 98 Reserve Component Major Promotion Board as he was still on active duty as of that board’s convening date.  It was noted that the applicant was not requesting changing his DOR to his PED; he was requesting a DOR as of the approval date of the CY 98 Reserve Components Selection Board, which was 31 August 1998.

11.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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.  In the applicant’s case, this is 3 January 2000.

2.  Notwithstanding the advisory opinion, 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 the applicant’s case is 7 years.  The applicant completed 7 years as a Captain on 31 July 1998.  He was properly not considered by the CY 98 Reserve Component Major Promotion Board; he was still in the Active Army at the time it convened.  However, he was released from active duty in May 1998 and was assigned to a Major’s position on 17 May 1998. He was in the higher position as of his PED when the CY 99 Reserve Component Major Promotion Board selected him for promotion.

3.  Notwithstanding the provisions of law that limit the effective date of promotion based on the date the President signs the promotion list, fairness requires that the officer’s records be corrected to show his DOR to be the date he completed the maximum years of service, i. e., 31 July 1998.  The Board concludes that there is no unfairness in not correcting the effective date of his promotion as all other officers selected for promotion by that board will also have the same effective date.
4.  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 applicant was promoted to Major as a Reserve commissioned officer of the Army in an Active Guard/Reserve status effective     3 January 2000 with a date of rank of 31 July 1998.

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

BOARD VOTE:  

__lls___  __jrs___  __cg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060570	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.