PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           2 April 2002
	DOCKET NUMBER:   AR2001063365

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		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 her date of rank to major be adjusted from 3 January 2000 to her promotion eligibility date of 21 February 1999.

3.  The applicant states that she met the maximum service requirements of seven years as a captain and twelve years of service on 30 April 1998; that she completed the Finance Officer Advance Course in 1991; and that she was promoted to major on 3 January 2000.  She cites Army Regulation 135-155, tables 2-1 and 2-2 and paragraphs 4-14, 4-15, and 4-19 as the authority for the correction.

4.  In support of her application, the applicant submitted a copy of her United States Army Reserve Personnel Command (AR-PERSCOM) assignment orders number R-01-000059, dated 7 January 1999; AR-PERSCOM assignment orders number R-01-000059A01, dated 25 January 1999; and a memorandum from the US Total Army PERSCOM, TAPC-MSL-N, dated 14 January 2000, advising her of her promotion as a Reserve Commissioned Officer of the Army in Active Guard/Reserve Status under the Provisions of Title 10, USC Chapter 1405.

5.  The applicant’s military records show that she is a major serving on active duty in the Active Guard/Reserve (AGR) program.  On 21 February 1999, she was assigned to a position graded as a major’s billet.

6.  The applicant was considered by the 1999 Reserve Component Major APL selection board that convened on 2 March 1999 and adjourned on 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 US Total Army Personnel Command at St. Louis, Missouri notified the applicant that she was promoted to major effective 3 January 2000 with a date of rank of 3 January 2000.

7.  In the processing of this case a staff advisory opinion (COPY ATTACHED) was obtained from the U.S. Total Army Personnel Command, Office of Promotions, Reserve Components.  The Office of Promotions, Reserve Components opined that the applicant was selected for promotion to major by the 1999 DA Reserve Components Selection Board with a promotion eligibility date of 30 April 1998, and was subsequently promoted on orders dated 14 January 2001 with a date or rank of 3 January 2000.  The Office of Promotions, Reserve Components stated that the applicant was assigned to a position graded as a major’s billet on 21 February 1999; therefore, it was recommended that her date of rank be changed to 21 February 1999.

8.  On 22 January 2002, the applicant concurred with the advisory opinion.

9.  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.

10.  Army Regulation 135-155, then in effect, provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard of the United States and the U. S. Army Reserve (USAR).  Paragraph 4-19 was superceded by the Reserve Officer Personnel Management Act (ROPMA) in 1996.  

11.  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.

12.  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.

13.  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 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 of Title 10, U.S. Code, Section 3363(d) to antedate the effective dates of Reserve officer promotions was repealed without replacement by 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.  In the applicant’s case, this is 3 January 2000.

2.  However, the provisions of law also state that an officer will be considered for promotion well in advance, so that, if recommended, she could be promoted on or before the date on which she completes the maximum years of service, which in the applicant’s case is 7 years.  The applicant completed 7 years as a captain on 30 April 1998.

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 her date of rank to be the date she was assigned to a position graded as a major’s billet, i.e., 21 February 1999.  The Board concludes that there is no unfairness in not adjusting the effective date of her 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:

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 21 February 1999.

BOARD VOTE:  

_WTM __  ___CLG_  __RKS__   GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		     _Walter T. Morrison___
		        CHAIRPERSON

INDEX

CASE ID	AR2001063365	
SUFFIX		
RECON		
DATE BOARDED	20020402	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	102.0700	
2.		
3.		
4.		
5.		
6.