PROCEEDINGS

	IN THE CASE OF:          

	BOARD DATE:               20 February 2003
	DOCKET NUMBER:       AR2002078301

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Allen L. Raub		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 to 31 August 1997.

3.  The applicant states that the Reserve Officer Personnel Management Act (ROPMA) under the United States Code, Title 10, Section 14304 requires that an officer recommended for promotion by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list be promoted not later than their maximum time in grade for their present grade.  He states that the effective date of his promotion to captain is 1 June 1990 and that he was not considered for major in the Active Guard/Reserve program until 1998.  He claims that his maximum time as a captain was 8 years not 7 years IAW [in accordance with] United States Code Title 10, Section 14304, paragraph (a).  In support of his application, he submitted a copy of a promotion memorandum, an excerpt from the United States Code Title 10, Section 14304, his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a promotion order.

4.  The applicant’s military records show that he was appointed as a Reserve commissioned officer on 13 May 1984 in the rank of second lieutenant.  He was ordered to active duty on 15 June 1986 and was promoted to first lieutenant with an effective date and date of rank of 23 May 1987.  He was promoted to captain with an effective date and date of rank of 1 June 1990.  The applicant was honorably released from active duty on 1 February 1997 in the rank of captain.

5.  The applicant was promoted to captain with an effective date and date of rank of 1 June 1990.

6.  Based on the required 7 years time in grade, his maximum years of service in grade (MYIG) date for promotion to major was 31 May 1997.

7.  The applicant was considered and selected for promotion to major by the 1998 Department of the Army Reserve Components Selection Board (RCSB) that convened on 24 March 1998 and adjourned on 29 April 1998.  The President approved the results of the board on 31 August 1998.

8.  In the processing of this case, a staff advisory opinion was obtained from the Chief of the Reserve Components Office of Promotions.  The opinion points out that the applicant was considered for promotion to major by the 1998 Department of the Army Reserve Components Selection Board and recommended for promotion.  It further points out that the officer was promoted to major on August 31, 1998 and that his date of rank to captain was June 1, 1990.  The opinion states that promotion to major requires 7 years time in grade.  Therefore, the applicant's promotion eligibility date was May 31, 1997.  The opinion referenced the ROPMA Act which states that an officer cannot be promoted until the board has been approved by the President of the United States.  It was noted that the Officer Management Division verified that the applicant went into the position requiring the higher grade on July 20, 1997 and was issued a promotion memorandum on September 24, 1998, with a date of rank of August 31, 1998, the day the President approved the Board.  Based on the foregoing, the advisory opinion recommended that the application be denied.

9.  On 10 October 2002, the advisory opinion was furnished to the applicant for his review and possible rebuttal; however, he has not responded as of 4 February 2003.

10.  The 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 became effective 1 October 1996.  Under ROPMA, the MYIG for a Reserve captain in order to be eligible for promotion to major is 7 years, and that an officer selected the first time for promotion to the next higher grade may be promoted on or before the date that he/she completes the maximum service.  ROPMA further specifies that selected Individual Ready Reserve (IRR) officers do not have to be in a higher grade position at the time of promotion on their MYIG date, and the other than IRR officers must occupy the higher position for promotion or transfer to an IRR status.  

11.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (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 maximum years of service in grade 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 table in subsection (a) establishes the maximum years of service in grade for a captain to be promoted to major as seven years and for a major to be promoted to lieutenant colonel as seven years. 

12.  The Acting Assistant Secretary of Defense for Force Management Policy provided guidance on 2 April 1999 regarding the time for processing reports of promotion boards.  This guidance was predicated on language by the Senate Armed Service Committee in its report on the Defense Authorization Act for Fiscal Year 1999.  This language required a report from the Secretaries of the Military Departments on all promotion board reports when the time from signature by the board members to approval exceeds 100 days.  The Acting Assistant Secretary of Defense also provided milestones for promotion board reports to reach the Office of the Secretary of Defense in order to meet the 100 day standard established by Congress.  As a result, it is apparent that the established standard for processing promotion lists is to obtain approval of promotion lists within 100 days.

CONCLUSIONS:

1.  The applicant was eligible for promotion to major on 31 May 1997 (his MYIG date for promotion to major) based on completing the required 7 years time in grade and occupying a major's position on that date.

2.  The Board noted the Congressional intent and Department of Defense guidance regarding timely processing of promotion board reports.

3.  Notwithstanding the advisory opinion, the Board determined that the applicant should have been considered for promotion so that he could be promoted upon reaching his MYIG for promotion to major.  Clearly, the applicant was disadvantaged in that his promotion to major was delayed.

4.  Based on the foregoing, the Board determined on a matter of equity, that the applicant's promotion effective date would remain 31 August 1998; however, his date of rank would be adjusted to show 31 May 1997.

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  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 31 May 1997.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

JL______  LE______  ALR_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Joann Langston________
		        CHAIRPERSON

INDEX

CASE ID	AR2002078301	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030220	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT IN PART	
REVIEW AUTHORITY	Mr. Scheider	
ISSUES         1.	102.0700	
2.		
3.		
4.		
5.		
6.