PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 April 2002                 
	DOCKET NUMBER:   AR2001064414

	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	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely		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 correction to his date of rank for major from 31 August 1998 to 20 May 1998.

3.  The applicant states that his maximum time in grade (MTIG) for Reserve captain is 7 years per the Reserve Officer Personnel Management Act (ROPMA). His promotion to captain was 21 May 1991 and his correct date of rank for major should be 20 May 1998.  He also states that he has been serving in a major’s position since 27 July 1997.  He submits copies of his promotion orders for captain and major and his officer record brief in support of his request. 

4.  The applicant’s military records show that he was appointed in the Reserve from the Reserve Officers Training Corps as a second lieutenant effective 19 May 1984.

5.  He was promoted to first lieutenant effective 22 May 1987 and to captain effective 21 May 1991.

6.  He was ordered to duty in the Active Guard/Reserve program effective 9 March 1992.

7.  Based on the required 7 years time in grade his MTIG date for promotion to major was 20 May 1998.

8.  Based on his zone of consideration, he was considered and selected for promotion to major by the 1998 Reserve Components Selection Board (RCSB), which convened on 24 March 1998.  The President approved the board results on 31 August 1998.  The processing of the board results was administratively delayed.

9.  The Army Reserve Personnel Command, Officer Management Division verified he was assigned a major’s position effective 20 April 1998.

10.  A promotion memorandum dated 24 September 1998 was issued to him showing 31 August 1998 as his promotion date for major.

11.  Under 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 was implemented effective 1 October 1996.  The ROPMA provides that in order to be eligible for promotion to major the MTIG is 7 years as a captain, and that an officer selected for the first time for promotion to the next higher grade may be promoted on or before the date that he/she completed the maximum service.  The ROPMA further specifies that AGR officers must be serving in a position requiring the higher grade for promotion purposes.

12.  Title 10, United States 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.  The Chief, Promotion and Notifications Branch, Office of Promotions, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant was promoted to major on 31 August 1998.  Promotion to major required 7 years time in grade; therefore, his promotion eligibility date was 20 May 1998.  He was considered for promotion to major by the 1998 RCSB and recommended for promotion.  Under ROPMA, an officer cannot be promoted until the President has approved the board.  The President approved the board on 31 August 1998 and the results were released on 24 September 1998.  Officer Management Division verified that he went into the position requiring the higher grade on 20 April 1998.  He was issued a promotion memorandum on 24 September 1998, with a date of rank of 31 August 1998, since this was the day the President approved the board.  The earliest date the applicant can receive is 20 May 1998.  Based on this information, the PERSCOM recommended that the application be denied.

14.  The opinion was forwarded to the applicant for rebuttal on 29 January 2002. In his rebuttal he states that he did not concur with the staff advisory opinion and that officers should not be penalized due to the failure of an Army promotion list board to consider them for promotion in a timely manner, ensuring they are promoted by the statutory seventh year of TIG.  He also states that he submitted his packet based on advice received from two fellow officers, who were originally promoted beyond their statutory 7 years TIG, and both had their dates of rank corrected to their promotion eligibility date through this Board.

CONCLUSIONS:

1.  The applicant is entitled to adjustment of his date of rank for major to 20 May 1998, his MTIG date.  He served the required MTIG as a captain and was entitled to promotion to major on 20 May 1998 based on his first time selection by the appropriate RCSB.

2.  The Board also notes that based on his MTIG date for promotion to major he was appropriately considered by the 1998 RCSB.

3.  Notwithstanding the opinion from the PERSCOM official, the applicant is entitled to correction to his date of rank for major to 20 May 1998.

4.  Notwithstanding the delay, the effective date of promotion shall remain as 31 August 1998, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the date of rank adjustment.

5.  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 the individual concerned was promoted to major effective 31 August 1998, with a date of rank of 20 May 1998, with no further entitlement to additional pay or allowances based on this adjustment.

BOARD VOTE:  

_fne____  _bjb____  _reb____     GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001064414	
SUFFIX		
RECON		
DATE BOARDED	200204118	
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.