MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           26 June 2003                  
	DOCKET NUMBER:   AR2002082012

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison 		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Lawrence Foster 		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:  Correction to his date of rank for lieutenant colonel from 7 June to 28 February 2002.

APPLICANT STATES:  That he met all requirements for promotion on the date the board’s list was released, which was 28 February 2002.  When he called about his promotion orders, he was advised that they were being withheld because he was due for a physical in April.  The earliest date he could get a physical scheduled was 10 May 2002 and the Army took 4 weeks to process it.  He also states that when he received his promotion orders he was given a date of rank of 7 June 2002 and he should not be penalized 3 months when at the time the promotion board results were released he met all requirements for promotion and did so for a full 30 days thereafter.  In support of his request he submits a memorandum of support from his current commander.

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

He was appointed in the Reserve as a second lieutenant effective 21 May 1983.

He attained the rank of major effective 25 May 1995.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to lieutenant colonel was 24 May 2002.

He was considered and selected for promotion to lieutenant colonel by the 2001 Reserve Components Selection Board (RCSB), which convened on 5 September and recessed on 2 October 2001.  The President approved the board results effective 1 February 2002.

He was issued a promotion memorandum with a promotion effective date and date of rank for lieutenant colonel of 7 June 2002.

The applicant’s current commander submits a memorandum of support in which he states that due to administrative error the applicant did not receive his promotion for almost 5 months after his selection.  When the list was released the applicant’s unit received notification that his physical had expired and the applicant could not get an appointment for a new physical for another month.  The processing time ending up taking from 28 February to 7 June 2002, for his promotion orders to be released.

The Military Personnel Actions Branch, AR-PERSCOM, expressed the opinion that effective 1 October 1996, the Reserve Officer Personnel Management Act (ROPMA) became effective and under ROPMA a promotion order does not exists until the board’s recommendation are approved by the President in 

accordance with Title 10, United States Code, section 14308.  Further, the effective date of promotion and the date of rank will be the date the officer is assigned to a higher graded position providing he/she meets all other qualifications for promotion.  The act further specifies that the effective date of promotion may not predate the approval, by the President, of the board results.  The applicant was selected on 2002 01D board with an approval date of 1 February 2002.  The applicant claims that his Unit Manning Report (UMR) shows he was in a lieutenant colonel position since 5 February 2002; however, the UMR furnished shows he was actually assigned to a lieutenant colonel position 7 June 2002.  It was determined that he met all qualifications for promotion effective 7 June 2002, when he was assigned to a valid position.

The advisory opinion was forwarded to the applicant for his acknowledgement/
rebuttal on 3 March 2003.  In his rebuttal, dated 12 May 2003, he states that he was occupying a valid lieutenant colonel slot on 28 February 2002 as he stated earlier and to which his battalion commander verified.  It was due to administrative error beyond his control that he was not properly slotted on the UMR and consequently he should not he punished.

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 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 major 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.  ROPMA further specifies that the officers must be serving in the Ready Reserve by the board convening date and serving in a position requiring the higher grade.  Promotion cannot be effective prior to approval of respective boards by the President.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that an officer selected by a mandatory promotion board that has a MTIG date before the approval date of the board, will have a promotion date and effective date no earlier than the date of approval of the mandatory board by which recommended.  In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved.

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(s), it is concluded:

1.  The applicant is not entitled to adjustment of his date of rank for lieutenant colonel.  He has not shown error or injustice for the relief he is requesting.

2.  The Board notes the applicant’s contentions; however, the applicant was not eligible for promotion to lieutenant colonel effective 28 February 2002, as he had not been assigned to a higher graded position on that date.  A review of his records verified that he was assigned to a lieutenant colonel position effective 7 June 2002.  His date of rank and promotion effective date are proper and he has not shown otherwise.

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

_LF_____  _WTM___  __LE____  DENY APPLICATION

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

INDEX

CASE ID	AR2002082012	
SUFFIX		
RECON		
DATE BOARDED	20030626	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.