ABCMR Record of Proceedings (cont)                                         AR2003091590

RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 February 2004
	DOCKET NUMBER:  AR2003091590

	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. Raymond V. O’Connor, Jr. | | Chairperson
| Mr. Lawrence Foster | | Member
| Ms. Margaret V. Thompson | | 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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, promotion to captain with a date of rank based on the 1995 Reserve Components Selection Board (RCSB).

2.  The applicant states that in March 1994, a memorandum of pending selection for promotion consideration to captain was mailed to an erroneous address using an incorrect city.  He did not see the memorandum until 1999, when he requested copies of his records from the Total Army Personnel Command (PERSCOM).  He also states that the 1994 captain RCSB did not consider him because he was missing an updated physical.  If the notice had been delivered to the correct address, he would have been able to produce a current physical and would have then been considered for promotion to captain. 

3.  The applicant further states that in August 1996, he resigned his Reserve commission as a first lieutenant and enlisted in the Regular Army for 4 years.  Towards the end of his enlistment, he requested a direct appointment in the Reserve and was reappointed a first lieutenant on 21 November 2000.  He should have been reappointed as a captain.  Subsequently, the promotions branch adjusted his date of rank for promotion consideration to captain based on the error in March 1994.  He immediately requested a special selection board (SSB) and in December 2002 was promoted to captain based on the results of the SSB with a date of rank of 1 March 2002.  He believes that date would be and should be based on an earlier date, if adjusted against the earlier promotion board.

4.  The applicant provides copies of his promotion selection memorandums for captain and major, his reappointment memorandum, and oath of office. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show that he was appointed in the Reserve as a second lieutenant effective 16 October 1987.  He was promoted to first lieutenant effective 15 October 1990.

2.  The applicant was voluntary reassigned from a troop program unit to the Individual Ready Reserve (IRR) effective 3 October 1991.

3.  Based on the required 4 years time in grade, his promotion eligibility date (PED) for captain was 14 October 1994.

4.  The applicant was considered and selected for promotion to captain by the 1994 RCSB with his original PED.  The notification of selection was mailed to the applicant at his home address listed in the promotions office database system.
5.  The applicant was discharged from the IRR as a first lieutenant effective 30 July 1996 by reason of unqualified resignation.  

6.  The applicant enlisted in the Regular Army (RA) as a specialist, pay grade 
E-4, for 4 years effective 16 October 1996.  He was separated from active duty effective 15 October 2000 in the pay grade of E-6 by reason of expiration of term of service.

7.  He was reappointed in the Reserve as a first lieutenant effective 21 November 2000.

8.  The Office of Promotions, Reserve Components, PERSCOM, verified that the applicant was assigned to an Active Guard Reserve (AGR) captain's position effective 9 September 2001.

9.  On 5 August 2002, a SSB considered and selected the applicant for promotion to captain under the 2001 criteria.  He was issued a promotion memorandum with a promotion effective date and date of rank of 1 March 2002.

10.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, PERSCOM, expressed the opinion that the applicant does not have a basis for promotion consideration, nor an adjusted date of rank based on the 1995 RCSB.  The applicant was selected for promotion by the 1994 RCSB with a PED of 14 October 1994.  The notification of selection was mailed to the address that was in the promotion system at the time.  The applicant had an outdated physical and could not be promoted on his PED.  Based on the fact he was still on the selection list when the 1995 board convened he was not eligible for consideration by the 1995 RCSB.  The applicant was discharged without the occurrence of promotion action and served in an enlisted status from 30 July 1996 until 21 November 2000.  The break in service as an officer of 4 years, 3 months, and 21 days adjusted his first lieutenant date of rank to 6 February 1995, and his PED to captain to 5 February 2000.

11.  The opinion further states that the applicant was still in a discharged status on 5 February 2000; therefore, his PED was further adjusted to 21 November 2000, the date of his reappointment.  He was selected for promotion by the August 2002 SSB under the 2001 criteria and promoted with a date of rank of 1 March 2002, the date the President approved the 2001 RCSB.  In accordance with Army Regulation 135-155, paragraph 4-21, an AGR officer's date of rank will be the date of his assignment to the higher graded position or the date he attains the maximum time in grade (MTIG), whichever is earlier.  Based on the 

applicant's adjusted PED of 21 November 2000, he is eligible for that date as his date of rank, and an effective date of 9 September 2001, the date of his assignment to a higher graded position in an AGR status.  In view of the facts presented, it was recommended that the applicant's request be disapproved and the above recommendation be approved.

12.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 2 September 2003.  In his rebuttal received on 15 September 2003, the applicant stated that he concurred with an adjusted date of rank of 21 November 2000 and promotion effective date of 9 September 2001.  This would satisfy his request submitted on the DD Form 149 (Application for Correction of Military Records).

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that an officer is promoted after selection, if all qualifications are met.  Each Reserve officer is required to undergo a medical examination at least once every 4 years.  Officers selected for promotion that have not been examined within the past year must certify that there has been no change in their medical fitness since the last complete medical examination.  When an officer does not meet all the qualifications for promotion, i.e., medically qualified, the effective date of promotion will not be earlier than the later date all qualifications are met.

14.  Army Regulation 135-155 further specifies that AGR officers selected by a mandatory board will be promoted (promotion effective date) provided they are assigned/attached to a position in the higher grade.  An AGR officer’s date of rank will be the date he/she attains the MTIG or the date on which assigned to a higher graded position, whichever is earlier.  An officer selected by an SSB would be entitled to the same date of rank as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered the officer.  Therefore, the officer may have a PED that is before the approval date of the SSB criteria that recommended the officer for promotion.

DISCUSSION AND CONCLUSIONS:

1.  It is concluded that the applicant is eligible for a corrected date of rank for captain of 21 November 2000, since his PED was before the approval date of the 2001 RCSB that recommended him for promotion.  The applicant was also assigned to an AGR captain's position prior to the approval date of the 2001 RCSB; therefore, he is also eligible for a corrected promotion effective date of 9 September 2001.

2.  In view of the circumstances in this case, the applicant is entitled to adjustment of his date of rank for captain to 21 November 2000, the date of his reappointment in the Reserve and a promotion effective date of 9 September 2001, the date of his assignment to a AGR captain's position, with entitlement to all back pay and allowances based on this adjustment.

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

BOARD VOTE:

___ro___  ___lf___  __mt___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was promoted to captain with date of rank of 21 November 2000 and promotion effective date of 9 September 2001, with entitlement to additional pay and allowances based on this adjustment.

		__Raymond V. O’Connor, Jr.____
		        CHAIRPERSON

INDEX

CASE ID | AR2003091590
SUFFIX |
RECON |
DATE BOARDED | 20040224
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | GRANT
REVIEW AUTHORITY |
ISSUES         1. | 131.00
2. | 131.01
3. | 131.05
4. |
5. |
6. |