PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            2 October 2003      
	DOCKET NUMBER:   AR2002083961

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 date of rank as a major (04) be backdated from 2 January 2000 to 22 August 1999 and the effective date of his promotion be corrected.

3.  The applicant states that he was not promoted on 22 August 1999, the date he reached his maximum time in grade as a captain.  He further states that this was due to the delay in the release of the 1999 major promotion board.  In support of his application he submits promotion orders to the rank of captain and to the rank of major and his first assignment order as a major.

4.  The applicant's military records show that he was appointed in the Reserve as a second lieutenant effective 23 August 1985.

5.  He attained the rank of captain effective 21 August 1992, and based on the required seven years maximum time in grade (MTIG) provisions for promotion to major, his promotion eligibility date (PEB) for that rank was established as of
20 August 1999.  His records show he was assigned to a major’s position in
an Infantry Branch and was transferred to a Civil Affairs Branch effective 
1 December 1999.

6.  The applicant was considered for promotion to major by the 1999 Reserve Component Selection Board (RCSB), for the rank of major that convened on
on 2 March 1999 and adjourned 2 April 1999.  The President of the United States approved the results of the selection board with his signature on 3 January 2000.  
7.  On 13 March 2000, the U. S. Total Army Personnel Command at St. Louis, Missouri, notified the applicant that he was promoted to major effective 3 January 2000 with a date of rank of 3 January 2000.

8.  In the processing of this case, a staff advisory opinion was obtained from the Office of Reserve Components Promotions of the U. S. Total Army Personnel Command.  It states that the applicant was considered and recommended for promotion by the 1999 Department of the Army Selection Board considering captains for promotion to major.  Since the applicant was promoted to captain on 21 August 1992, his promotion eligibility date was 20 August 1999, based on seven years time in grade.  However, the applicant was promoted to his current rank of major/0-4, effective 3 January 2000, the date the President approved the board results.  Based on the forgoing, the U. S. Total Army Personnel Command recommended disapproval of the applicant’s request for adjustment of his date of rank from 3 January 2000 to 21 August 1999. 

9.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal on 10 March 2003.  He did not respond within the given time frame.

10.  Title 10, U. S. code, section 12203 provides that appointments of reserve officers in commissioned grades above the grade of lieutenant colonel shall be made by the President, by and with the advice and consent of the Senate.  Appointments of reserve officers in commissioned grades of lieutenant colonel and below shall be made by the President alone.

11.  The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribed policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers.  It was implemented on 1 October 1996, and it established that the MTIG for a captain is seven years, and that an officer selected for promotion to major the first time he/she is considered will be promoted on or before the date that he/she completes the MTIG. 

12.  ROPMA further specifies that the officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve in order to be promoted, and that promotions cannot be effective prior to approval of respective boards by the President.

13.  The ROPMA promotion boards for major were administratively delayed.  In some cases the Presidential approvals of the results of the pertinent promotion 
boards were also administratively delayed.  Based on normal processing, the boards should have been approved approximately 100 days after their respective recess dates.  

14.  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.”

15.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that time in grade for a commissioned officer is 7 years in the grade of captain for promotion to major.  The regulation also specifies that Reserve unit officers will be promoted provided they are assigned to a position in the higher grade and the date of rank will be the date the officer attained the MTIG or the date on which assigned to a position in the higher grade.

CONCLUSIONS:

1.  The applicant is entitled to an adjustment to his date or rank for major to
20 August 1999, based on his assignment to a major’s position and the processing delays of the 1999 RCSB.  

2.  The respective promotion board and the processing of the promotion board results were 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 date of rank adjustment.

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 applicant was promoted to major effective 
3 January 2000, with a date of rank of 20 August 1999, with no further entitlement to additional pay or allowance based on this adjustment.

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

BOARD VOTE:  

KAN       _  LE             JTM       _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		
		_   Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID	AR2002083961	
SUFFIX		
RECON	 	
DATE BOARDED	2003-10-02	
TYPE OF DISCHARGE	 Grant	
DATE OF DISCHARGE	           	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT  	
REVIEW AUTHORITY	DASA	
ISSUES         1.	A102.0700	
2.		
3.		
4.		
5.		
6.