PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           4 March 2003
	DOCKET NUMBER:   AR2002082878

	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:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. William D. Powers		Member	
	Ms. Linda M. Barker		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 promotion date be changed from 
6 October to 1 October 2000.

3.  The applicant states, in effect, that late Senate confirmation of the Fiscal Year 2000 (FY00) Lieutenant Colonel (LTC), Medical Corps (MC) Promotion Selection List negatively impacted his promotion date.  The list was not confirmed by the Senate until 6 October 2000, and as a result, all officers with a date of rank (DOR) of 5 October 2000 or earlier were given a permanent promotion DOR to LTC of 6 October 2000.  He claims that in accordance with the governing regulation, promotion zones should be established in order for those in the zone, if selected, to be promoted on sixth anniversary of their date of rank (DOR).  

4.  The applicant’s military records show that he was commissioned a captain (CPT) in the MC and entered active duty on 20 July 1993.  He was promoted 
to Major (MAJ) on 1 October 1994, and he is currently serving as a LTC, at Tripler Army Hospital, Hawaii.  

5.  The applicant was selected for promotion to LTC by the FY00, LTC, MC, Promotion Selection Board, which convened on 21 March 2000 and adjourned on 31 March 2000.  The Senate finally confirmed this list on 6 October 2000, and the applicant’s LTC promotion effective date and DOR were established as that date. 

6.  On 18 October 2000, The Surgeon General of the Army prepared a memorandum for the applicant that congratulated him on his promotion to LTC.  In this memorandum , The Surgeon General also advised the applicant that the promotion list did not receive Senate confirmation until 6 October 2000.  Further, by law, promotion lists for grades MAJ and above cannot be acted upon until the Senate confirms the list, and that promotions from his specific list were delayed until this Senate confirmation occurred.  He also advised the applicant that an unsuccessful attempt to adjust/correct the effected DOR as a group had been made with Department of the Army (DA) officials of the Office of the Deputy Chief of Staff, Personnel (ODCSPER).  However, he advised the applicant that he retained the option to appeal to this Board and request an adjustment to his LTC DOR.  

7.  In connection with the processing of this case, the Board requested and received an advisory opinion from promotion officials of the Total Army Personnel Command (PERSCOM).  It indicates that the FY00 LTC MC Promotion Selection Board List was not confirmed by the Senate until 6 October 2000.  Further, PERSCOM promotion officials recommend that the applicant’s appeal to this Board be approved, and that his DOR and promotion effective date be amended to 1 October 2000.  The applicant was provided a copy of this advisory opinion and on 15 February 2003 he concurred with its contents.  
8.  Army Regulation 600-8-29 prescribes the Army’s officer promotion policies and procedures.  Paragraph 1-10 provides eligibility guidance and sub-paragraph c (5) states, in pertinent part, that promotion zones for Medical or Dental Corps officers will be established to ensure that those in the zone, if selected, will be promoted on the sixth anniversary of their active duty DOR.  Paragraph 1-11 provides the policy on approving promotion board recommendations.  It states that promotion boards make recommendations to the President of the United States.  The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports.  Finally, it states, in pertinent part, that promotions to the grade of MAJ and above must be confirmed by the Senate.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his LTC promotion effective date and DOR should be corrected to 1 October 2000, and it finds partial merit in this request.  By law, promotion zones for MC officers will be established to ensure that those in the zone, if selected, will be promoted on the sixth anniversary of their active duty DOR.  However, promotion lists to the grades of MAJ and above must be confirmed by the Senate prior to effecting the promotions of those on the list.  

2.  The evidence of record confirms that the applicant was promoted to MAJ on 
1 October 1994.  It also shows that the FY00, LTC, MC, Promotion Selection Board was held during the month of March 2000, which should have allowed for Senate confirmation prior to sixth anniversary of the applicant’s active duty DOR, which was 1 October 2000.  Therefore, the Board concludes that it would serve the interest of justice to correct the applicant’s LTC DOR to 1 October 2000, in order to allow him to remain competitive with his contemporaries for future promotion consideration.

3.  However, by law, the effective date of an officer’s promotion to LTC cannot be prior to Senate confirmation, and given DA, ODCSPER officials declined to make a group correction to the promotion list in question, 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.  This determination is made in the interest of equity to all of those officers who were on the same promotion selection list and were also impacted by the late Senate confirmation. 

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the DOR to LTC of the individual concerned is 
1 October 2000.

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

BOARD VOTE:  

__RJW__  __WDP _  __ LMB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_  Raymond J. Wagner  ._
		       CHAIRPERSON

INDEX

CASE ID	AR2002082878	
SUFFIX		
RECON		
DATE BOARDED	2003/03/04	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  21	102.0700	
2.		
3.		
4.		
5.		
6.