PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           13 March 2003                  
	DOCKET NUMBER:   AR2002079694

	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. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John A. Kelley		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 3 January 2000 to 1 November 1999.

3.  The applicant states that the 1999 major board promotion list was released on 3 January 2000, which gave him a date of rank of 3 January 2000, which is incorrect.  His date of rank for captain is 1 November 1992; therefore, according to Title 10, United States Code, chapter 1405, section 14304(a) and 14304(b), his date of rank should be 7 years later.  In support of his application he submits copies of his promotions orders for captain and major.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 12 May 1987.

5.  He was ordered to active duty for 3 years effective 12 August 1989.  He attained the grade of captain effective 1 November 1992.  He was honorably separated from active duty effective 29 October 1998 and transferred to a Reserve troop program unit.

6.  On 1 November 1998, he was assigned to the USAR Control Group, Active Guard/Reserve (AGR).

7.  The Officer Management Division, Army Reserve Personnel Command verified the applicant was assigned to an AGR major position effective 20 July 1999.

8.  Based on the required 7 years time in grade, his maximum time in grade date for promotion to major was 31 October 1999.

9.  He was considered and selected for promotion to major by the 1999 RCSB, which convened on 2 March 1999.  The President approved the results of the board on 3 January 2000. 

10.  He was subsequently promoted to major with a promotion effective date and date of rank of 3 January 2000.

11.  The Reserve Officer Personnel Management Act (ROPMA), public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern the management of Reserve component officers.  The law was implemented on 1 October 1996.  ROPMA provides that in order to be eligible for promotion to major the MTIG for a captain is 7 years, 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 completes the maximum service.  Promotion cannot be effective prior to approval of respective boards by the President.

12.  Title 10, United States Code, section 14304 specifies that officer 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 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 the required years of service. 

13.  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.”

14.  The Chief, Promotion and Notifications Branch, Office of Reserve Promotions, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant was promoted to captain on 1 November 1992.  Promotion to major requires 7 years time in grade; therefore, his promotion eligibility date to major was 31 October 1999.  He was considered and selected for promotion to major by the 1999 RCSB and recommended for promotion with a date of rank of 3 January 2000.  Under the ROPMA, an officer cannot be promoted until the President has approved the board.  The President approved the board on 3 January 2000 and the results were released on 14 January 2000. He was issued a promotion memorandum on 14 January 2000, with a date of rank 3 January 2000, since this was the day the President approved the board.  Based on this information, it was recommended that the applicant's request be denied. 

15.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 20 December 2002.  He did not respond.

CONCLUSIONS:

1.  Notwithstanding the opinion from the PERSCOM, the applicant is entitled to adjustment of his date of rank for major to 31 October 1999, his MTIG date and in accordance with the ROPMA.

2.  The processing of the promotion board results was administratively delayed through no fault of the applicant, and he should not be penalized for the delay.

3.  Notwithstanding the delay, the effective date of promotion shall remain as 3 January 2000, the date the President approved the board, and the applicant is not further entitled to additional pay and allowances for the antedated date of rank.

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 the individual concerned was promoted to major effective 3 January 2000, with a date of rank of 31 October 1999, with no further entitlement to additional pay or allowances based on this adjustment.

BOARD VOTE:  

__TAP__  _RWA___  _JAK____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Thomas A. Pagan
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002079694	
SUFFIX		
RECON		
DATE BOARDED	20030313	
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.