PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           4 April 2002
	DOCKET NUMBER:   AR2001064937

	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. Arthur A. Omartian		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Karen Y. Fletcher		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 to major be adjusted from 19 July 2000 to his promotion eligibility date of 1 October 1999.

3.  The applicant states that his promotion orders show his date of rank and effective date of promotion to major as 19 July 2000.  The date of rank, Item “B,” should be 30 September 1999, the date he reached his 7th year as a captain.  He cites Army Regulation (AR) 135-155, paragraphs 3-10, 4-10, and table 2-1 as the authority for the correction.

4.  In support of his application, the applicant submitted a copy of his promotion order to captain/0-3, his promotion memorandum to major/0-4, and Table 2-1, AR 135-155.

5.  The applicant’s military records show that he served on active duty from 1 November 1988 to 10 July 1999.  During his active duty, he was twice considered for promotion to major by the Major, Army Competitive Category, Promotion Board and was not selected for promotion.  Immediately following his separation from active duty, he entered the Active/Guard Reserve (AGR) program.  The Full Time Support Management Directorate states that he was assigned to a position graded as a major's billet on 11 July 1999.

6.  The applicant was considered for the first time and selected by the 2000 Reserve Component, Major, Army Promotion List Selection Board that convened on 2 March 2000 and adjourned 2 April 2000.  The President of the United States approved the results of the selection board with his signature on 19 July 2000.  On 10 August 2000, the US Total Army Personnel Command at St. Louis, Missouri notified the applicant that he was promoted to major effective 19 July 2000 with a date of rank of 19 July 2000.

7.  Army Regulation 600-8-24, Chapter 2, sets forth the tasks, rules, and steps for the release from active duty (REFRAD) of Reserve Component (RC) officers and officers of the Army of the United States without specification of component, including those assigned to other than Department of the Army agencies.  Paragraph 2-3 of this regulation states that unless discharged, officers holding a Reserve appointment will retain their current permanent grade in the RC.

8.  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.

9.  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).  The Reserve Officer Personnel Management Act (ROPMA) superceded paragraph 4-19 in 1996.  

10.  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.

11.  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.

12.  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 19 July 2000.

2.  However, the provisions of law also state that an officer will be considered for promotion well enough in advance so that, if recommended, he could be promoted on or before the date on which 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 30 September 1999.

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 date of rank to be the date he completed the maximum years of service, i.e., 30 September 1999.  The Board concludes that there is no unfairness in not adjusting 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, but only 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 19 July 2000 with a date of rank of 30 September 1999.

BOARD VOTE:  

_AAO___  __RWA__  _KYF __   GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_      Arthur A. Omartian__
		        CHAIRPERSON

INDEX

CASE ID	AR2001064937	
SUFFIX		
RECON		
DATE BOARDED	20020404	
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.