MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           22 May 2003                  
	DOCKET NUMBER:   AR2002077286

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Gail J. Wire		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records

	Exhibit B - Military Personnel Records (including advisory opinion, if any)

APPLICANT REQUESTS:  That the effective date of his promotion to major be corrected to 21 February 1998.

APPLICANT STATES:  In effect, he can find no regulation that allows for the withholding of promotion beyond a member’s maximum time in grade.  

EVIDENCE OF RECORD:  The applicant's military records show that:

The applicant, a Reserve officer currently serving on active duty in the Active Guard/Reserve (AGR) program, was promoted to captain (O-3) on 3 March 1992 and to his current rank, major (O-4), effective 31 August 1998.  

The applicant’s file went before the 1998 major promotion board, which recessed on 24 April 1998 and the recommendations of that board were forwarded to the President for approval.  The President approved the recommendation on 31 August 1998.  Based upon the date of the President’s approval of the promotion board’s recommendations, the applicant was promoted to major effective 31 August 1998.  

Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the U.S. Army Reserve (USAR).  In pertinent part, it states that first consideration for promotion will occur well in advance of the date the officer will complete the time in grade (TIG) requirements in Table 2-1.  Table 2-1 lists the TIG requirements for major as a minimum of 4 years and a maximum of 7 years.  It also states that upon completion of the recommendations of the selection board the recommendations are forwarded to the President for approval.  A promotion memorandum is to be prepared after the President has approved the promotion board recommendations.  The effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued.

During the processing of this case an advisory opinion was obtained from the Total Army Personnel Command.  The Chief, Special Actions Branch, Reserve Components noted that the applicant’s promotion eligibility date to major was 28 February 1999, based on his date of promotion to captain.  However the applicant was serving in a position requiring the higher rank as of 22 February 1998.  He further noted that an officer cannot be promoted until after the President has approved the recommendation.  He opined that, since the President did not approve the recommendation until 31 August 1998, this was the earliest date that the applicant could legally be promoted and recommended that the applicant’s request be denied.

A copy of the advisory opinion was forwarded to the applicant.  The record does not contain an indication of any rebuttal by the applicant.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The applicant was properly considered by the 1998 selection based on his years of service and date of promotion to captain.  Even though he was serving in a position requiring the higher rank on 22 February 1998, in accordance with regulation, the earliest date that any officer recommended by that board is the date that the President approved the recommendations, 31 August 1998.

2.  Therefore, the Board concludes that there is no evidence that would support a promotion date prior to the date that the 1998 board recommendations were approved by the President, 31 August 1998.   

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO__  ___SK __  __GJW __  DENY APPLICATION

	Carl W. S. Chun
	Director, Army Board for Correction
	of Military Records

INDEX

CASE ID	AR2002077286	
SUFFIX		
RECON		
DATE BOARDED	20030522	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	Date of promotion	
2.		
3.		
4.		
5.		
6.