PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            18 June 2002
	DOCKET NUMBER:   AR2001063242

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 the effective date of his promotion to captain (CPT) and his date of rank (DOR) be changed to 2 December 1996; and that he be provided all back pay and allowances due as a result.  

3.  The applicant states, in effect, that his CPT DOR should be changed to 
12 December 1996, the date he joined the USAR.  He claims that he never understood why his active duty promotion list status did not carry over to the USAR upon his release from active duty (REFRAD), but he was told by his superiors at that time that it did not and accepted that explanation.  He failed to pursue this matter again until May 1999, when he became eligible to compete for promotion in the USAR.  At that time, he discovered that his active duty promotion list status should have been carried over to the USAR, but he was advised to continue with the Reserve Component (RC) promotion board process until he became a CPT and attempt to change his promotion date after he was selected for promotion.  In support of his application, he provides e-mail traffic indicating he attempted to resolve this issue, dated between May 1999 and September 2001, letters congratulating him on his selection for promotion while on active duty, his separation document (DD Form 214), the orders transferring him to the USAR, and the Fiscal Year 1996 active duty promotion list published by Department of the Army (DA).  

4.  The applicant’s military records show that he was promoted to the rank of CPT on 2 June 2001, and that he is currently serving as the company commander of a Troop Program Unit (TPU) of the USAR (E Company, 
1st Battalion, 389th Regiment, Schenectady, New York), a position he assumed on 1 December 2001. 

5.  The applicant served on active duty for 3 years, 2 months, and 8 days, from 24 September 1993 through 1 December 1996.  Orders Number 281-238, dated 7 October 1996, issued by Headquarters, III Corps, Fort Hood, Texas, as amended by endorsement on 15 October 1996, confirm that upon his REFRAD, he was assigned to Company C, 368th Engineer Battalion, Rutland, Vermont, a USAR TPU.  

6.  The DD Form 214 issued to the applicant upon his separation from active duty confirms that he held the rank of first lieutenant (1LT) on that date.  It also verifies that he was transferred to Company C, 368th Engineer Battalion, Rutland, Vermont, where he assumed duties as a company construction officer on 
2 December 1996.  

7.  A copy of a memorandum issued by the Total Army Personnel Command (PERSCOM), Alexandria, Virginia, subject:  FY96 Promotion List for Captain, Army Competitive Category, dated 11 July 1996, confirms that the applicant was selected for promotion to CPT while serving on active duty and that he was assigned a promotion sequence number of 2962.  
8.  In connection with the processing of this case, the Board requested and received an advisory opinion from the Chief, Promotions & Notifications Branch Office of Promotions, Reserve Components, PERSCOM, St. Louis, Missouri.  It indicates that while serving on active duty, the applicant was selected for promotion by the 1996 active duty promotion board and that the promotion selection list from this board was released in August 1996.  It further opines that given the applicant was REFRAD after 1 October 1996, the inception date of the Reserve Officer Personnel Management Act (ROPMA), he may be eligible for an earlier DOR.  The applicant’s eligibility would be determined using the provisions of Department of Defense (DOD) Directive 1310.1, which directed at the time  that a 1LT selected for promotion by the 1996 active duty board and who was REFRAD after 1 October 1996, will carry his selection for promotion with him to the USAR. It further stated that if the officer was assigned to a higher grade position he may be promoted on the date of his assignment to the position.  Since the applicant was assigned to a TPU and promoted by the Reserve Command, his case should be forwarded to that office for a determination of eligibility for an earlier DOR.  A memorandum of a telephone conversation between a member of the USAR promotion office and a member of the policy branch, attached to this opinion, confirms the policy for the carryover of an active duty promotion list status into the USAR.  

9.  An advisory opinion was also received from a PERSCOM, St. Louis, military personnel actions technician, which indicates that under the Reserve Officer Personnel Management Act (ROPMA), officers selected by a mandatory board will have a promotion date and effective date no earlier than the approval date of the promotion board or the date of Senate confirmation, if required, provided they are assigned to a position in the next higher grade.  It further states that the applicant was selected for promotion by the RC promotion board and placed on the promotion list that was released on 20 March 2001, and approved on 26 April 2001.  It further states that the applicant did not meet the qualifications for promotion until 2 June 2001, which established the approval date of his promotion.  In view of these facts, it was recommended that the applicant’s request for a correction to the effective date of his promotion and his DOR be denied.  

10.  On 30 May 2002, the applicant provided a response to the advisory opinion outlined in the preceding paragraph.  He states that at the time he was REFRAD, he was not aware that he could retain his active duty promotion list status.  Therefore, he did not specifically seek out a CPT position in the USAR, which would have allowed his promotion based on his active duty list status.  He indicates that he has researched to determine what CPT positions were vacant at the time he was REFRAD.  He comments that this was difficult, considering that the documents that list these vacancies are current working documents that change regularly.  

11.  In his rebuttal letter, the applicant also indicates that he did contact his former battalion command sergeant major, who was able to confirm that there were two vacant CPT positions in his unit at the time of his arrival, a company commander position and an S-2 position in the 368th Engineer Battalion.  He indicates that the TPU he joined upon his REFRAD was in Rutland, VT, over 
100 miles away from his home, but he choose to join it because it had a vacant 1LT slot.  He further comments that he was considered and not selected for promotion by a RC board in 1999, because the necessary educational documentation was not in his record.  However, he provides a copy of a letter forwarding these education documents to the 1999 RC promotion board prior to the established deadline.  He also states that the comment made by the PERSCOM, St. Louis, military personnel technician, which indicates he did not meet promotion qualifications until June 2001 are misleading.  His ineligibility was based on a physical examination that had expired just a few months before the date the promotion list with his name was released.  However, the physical examination he took in 1996 was valid on the date he entered the USAR and when he was considered for promotion to CPT by the RC boards in 1999 and 2000.

12.  DOD Directive 1310.1 (Rank and Seniority of Commissioned Officers) establishes the DOD policy for determination of the dates of rank and the precedence of commissioned officers on the active duty and reserve Active Duty List (ADL) and Reserve Active Status List (RASL).  It states, in pertinent part, that an officer on active duty and on a promotion list as a result of selection for promotion and who before being promoted is removed from the ADL and placed on the RASL of the same Armed Force shall be placed on an appropriate promotion list.  The effective date of promotion and DOR shall be the same as if the officer had been selected to the grade concerned by the promotion board for RASL officers.  If the Secretary of the service concerned determines circumstances exist such that an inequity would result in following the foregoing method in determining DOR, he or she may set the date of rank. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his CPT promotion effective date and DOR should be changed to 2 December 1996, and it finds this claim has merit.  

2.  Policy established in DOD Directive 1310.1 directs that an officer on active duty and on a promotion list as a result of selection for promotion and who before being promoted is removed from the ADL and placed on the RASL of the same Armed Force shall be placed on an appropriate promotion list.  The effective date of promotion and DOR shall be the same as if the officer had been selected to the grade concerned by the promotion board for RASL officers.  

3.  The evidence of record confirms that the applicant was selected for promotion to CPT by an active duty promotion board and placed on the active duty promotion standing list that was released on 11 July 1996.  He was subsequently REFRAD on 1 December 1996, and transferred to a TPU of the USAR, without his ADL promotion standing list status being considered or transferred to the appropriate RASL at the time.  

4.  The Board notes the conflicting opinions rendered by RC personnel officials and it finds agreement with the one rendered by the Chief of the RC Promotions Branch, which is supported by RC promotion policy officials.  The Board does not contest the comments made by the military personnel technician, which indicate that the applicant’s promotion effective date and DOR are proper based on his selection for promotion by an RC promotion board in 2001.  However, it does not consider this to be the determinate policy or overriding factor in this case.  Rather, it concurs with the opinion rendered by the Chief, RC Promotions, which is that given the guidance in DOD Directive 1310.1, it appears the applicant should have been allowed to carry over his active duty promotion list status to the USAR. 

5.  Although, at this late date it can not be exactly determined when the applicant would have been promoted, if his promotion list status had been transferred to the USAR, it is clear he was unfairly denied this opportunity.  In the opinion of the Board, it is very likely that had the proper promotion list transfer policy been followed in the applicant’s case, he would very likely have been able to obtain a valid CPT position in a USAR TPU, and would have been promoted to CPT upon assumption of this position.  Therefore, in the interest of justice and equity, the Board concludes that the applicant’s CPT promotion effective date and DOR should be changed to 2 December 1996, and that he should be provided all back pay and allowances due as a result. 

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to captain/0-3 on 
2 December 1996; and by providing him all back pay and allowances due as a result. 

BOARD VOTE:  

__KAK__  __MHM__  __ALR__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Karol A. Kennedy___
		        CHAIRPERSON

INDEX

CASE ID	AR20010632342	
SUFFIX		
RECON		
DATE BOARDED	2002/06/18	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  314	131.0400	
2.  21	102.0700	
3.		
4.		
5.		
6.