PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 October 2002
	DOCKET NUMBER:   AR2002076239

	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. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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 his major (MAJ) date of rank (DOR) be corrected.   

3.  The applicant states, in effect, that his captain (CPT) DOR rank was 
1 May 1992, which made his promotion eligibility date (PED) to MAJ 
30 April 1999, based on the 7 year maximum years in grade (MYIG) requirement for promotion to MAJ.  

4.  The applicant’s military records show that he is currently serving on active duty in an Active Guard Reserve (AGR) position.  It also confirms that he was promoted to the rank of CPT on 1 May 1992, which established his PED for MAJ as 30 April 1999, based on his having attained the 7 years MYIG requirement established by law. 

5.  The applicant was selected for promotion to MAJ by the 2000 Reserve Component (RC) MAJ Promotion Selection Board that was approved on 
19 July 2000.  

6.  A promotion memorandum pertaining to the applicant, dated 10 August 2000, published by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri, authorized his promotion to the rank of MAJ, effective 19 July 2000, which was also the date established as his DOR.

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).  

8.  Chapter 2, section III (Board Consideration), states that boards will convene each year and will consider officers on the Reserve Active Status List (RASL) for promotion to captain through lieutenant colonel without regard to vacancies in the next higher grade.  It also states, in pertinent part, that the first consideration for promotion will occur well in advance of the date the officer will complete the TIG requirements in table 2-1 or table 2-3, as appropriate.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the MYIG requirement for promotion to MAJ is 7 years.  

9.  Chapter 4, section III (Dates of Promotion) does state that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued, and the promotion memorandum will not be issued prior to promotion board results being approved and/or confirmed by the Senate (if required).  In addition, Title 10 of the United States Code, section  12203 (10 USC 12203) establishes, in effect, that RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President.  It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle him to additional pay or allowances.

10.  10 USC 14304 provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law.  Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the MYIG 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.  This provision of the law establishes the MYIG for CPT going to MAJ as 7 years.  Paragraph (b) states, in effect, that a RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list shall be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his MAJ DOR should be changed based on his CPT DOR and his MAJ PED, and it finds this claim has merit.  By law and regulation, officers will be placed in a promotion zone and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the MYIG 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.  

2.  The evidence of record confirms that the applicant was promoted to CPT on 
1 May 1992, and as a result his PED for MAJ would have been 30 April 1999.  Therefore, the Board concludes, since the applicant attained his MYIG as a CPT and his PED to MAJ on 30 April 1999, his MAJ DOR should be changed to this date.

3.  However, by law, the effective date of an officer’s promotion cannot be prior to the date the President signs the list.  Therefore, the DOR adjustment authorized by the Board does not entitle the applicant to a change in the effective date of his promotion or to any back pay or allowances.

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 DOR to MAJ of the individual concerned is 30 April 1999.

BOARD VOTE:  

__INW__  __WTM__  __CG  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		  ___Irene N. Wheelwright___
		           CHAIRPERSON

INDEX

CASE ID	AR2002076239	
SUFFIX		
RECON		
DATE BOARDED	2002/10/03	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  21	102.0700	
2.		
3.		
4.		
5.		
6.