PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            5 March 2002                  
	DOCKET NUMBER:   AR2001062876

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Donald P. Hupman, Jr.		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, back pay and retirement points for the period 2 November 1999 to 14 June 2001.

3.  The applicant states that he was passed over for promotion to captain by the 1997 and 1998 selection boards, and the boards did not receive his microfiche that indicated he had a Bachelor of Science degree.  Upon appeal to a special selection board, he was selected and promoted to captain with a date of rank of 25 June 1998 and reinstated in the National Guard as of June 2001.  He received back pay for the difference in pay received from 25 June 1998 until 2 November 1999. 

4.  The applicant’s military records show that he was commissioned in the Regular Army from Reserve Officers Training Corps as a second lieutenant effective 21 December 1991.

5.  He was promoted to first lieutenant effective 21 December 1993.

6.  He was honorably separated from active duty effective 15 October 1994.

7.  He was appointed in the Reserve as a first lieutenant effective 16 October 1994.  His maximum time in grade (MTIG) date for promotion to captain was 20 December 1998.

8.  He was transferred from the Reserve to the Ohio Army National Guard (OHARNG) effective 7 July 1995.

9.  He was considered and not selected for promotion to captain by the 1997 and 1998 Reserve Components Selection Boards (RCSB’s).

10.  He was honorably discharged from the OHARNG effective 1 November 1999.

11.  It was determined that his records contained material error when seen by the 1997 RCSB.  He was then considered and selected for promotion to captain by a special selection board (SSB) under 1997 criteria.

12.  He was promoted to captain with an effective date of 25 June 1998.

13.  He was reappointed in the OHARNG effective 15 June 2001 as a captain.

14.  Current promotion policy specifies that officers selected by an SSB are eligible for the same date rank that they would have received by the original board in which the error occurred. 

15.  The Reserve Officer Personnel Management Act (ROPMA) was implemented effective 1 October 1996.  Among many other things, it required that second lieutenants serve a MTIG of 2 years before promotion to first lieutenant, and first lieutenants serve a MTIG of 5 years before promotion to captain.  The Reserve Officer Personnel Act in effect prior to ROPMA required completion of 3 years as a second lieutenant and 4 years as a first lieutenant before promotion to captain.  The ROPMA also provides for early promotion upon approval of the promotion board results when in a higher graded position.

16.  Under ROPMA, an officer selected for the first time for promotion to captain after serving 7 years total as a second and first lieutenant may be promoted on or before the date that he/she completed the MTIG service.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade for promotion, unless assigned to the Individual Ready Reserve.

17.  The Chief, Promotion and Notifications Branch, Office of Promotions, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant was identified to the 1997 and 1998 RCSB’s and non-selected.  The applicant applied and was identified to an SSB under 1997 criteria, with a promotion eligibility date of 20 December 1998 and selected.  The applicant was given an effective date of 25 June 1998, the approval date of the original 1997 board.  The applicant should have received a promotion eligibility date of 20 December 1998 date.  PERSCOM recommended that the applicant’s request be denied at this time.

18.  The opinion was forwarded to the applicant for rebuttal on 7 December 2001. He did not respond.

CONCLUSIONS:

1.  Notwithstanding the opinion from PERSCOM, the applicant is entitled to back pay and retirement points for the period 2 November 1999 through 14 June 2001. 

2.  The applicant’s discharge on 1 November 1999 was invalid and should be voided without force or effect.  The Board concludes that had he been properly considered and selected by the 1997 RCSB, he would not have been discharged.

3.  The Board also concludes that under these circumstances the applicant was wrongfully denied pay and retirement points for National Guard service as a captain based on his unfair non-selection by the 1997 RCSB and his subsequent discharge on 1 November 1999.  While he was paid the difference in pay between a first lieutenant and captain for his later promotion on 25 June 1998 to his discharge on 1 November 1999, he remains due back pay and retirement points for the period 2 November 1999 until his reappointment on 15 June 2001.
4.  In this case, the Board will not adjust the applicant’s date of rank to a date later than that previously provided.  

5.  In view of the facts and circumstances surrounding this matter, and insofar as the Department of the Army is concerned, the interest of justice would best be served by now correcting the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

	a.  by voiding the discharge of the individual concerned on 1 November 1999 from the Ohio Army National Guard, with no force or effect; and

b.  by showing he is due back pay as a captain and appropriate retirement points credit at the rate of 50 points per year, for the period from 2 November 1999 through 14 June 2001.

BOARD VOTE:  

_fne____  _tbr___  __dph___       GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001062876	
SUFFIX		
RECON		
DATE BOARDED	20020305	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.