MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 September 2001
         DOCKET NUMBER: AR2001052598

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Donald P. Hupman		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)

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APPLICANT REQUESTS: That his records be corrected to show his date of rank to captain as 26 May 1993 instead of 17 October 1995.

APPLICANT STATES: That his date of rank for promotion to captain should reflect the date “26 May 1993” instead of “17 October 1995”. He claims that he was released from active duty in July 1992 as part of the Reduction in Force when he was not selected for promotion to captain. He further claims that after his release and transfer to the Individual Ready Reserve (IRR), he received notice that he would be reviewed for promotion by the Reserve Component board in November 1992. That board selected him for promotion to captain. He continues to state that during the time between the promotion board and the release of the results, he pursued entry into the Texas Army National Guard to continue his career and professional development. Further, he claims that when he was notified of the results of the promotion board, the Texas Army National Guard did not act on the results of the board but waited until October 1995 to promote him to captain. He states that during recent conversations with the career management counselors and the promotion branch at the Army Reserve Personnel Command (AR-PERSCOM), he was encouraged to seek correction of this discrepancy through the Army Board for Correction of Military Records. In support of his application, he submits a supplemental letter, two memorandums from the U.S. Total Army Personnel Command, his letter to the Army Promotion List Selection Board, and Army National Guard Bureau Special Orders Number 153.

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

The applicant was appointed as a Reserve commissioned officer in the Armor Branch on 9 May 1986 in the rank of second lieutenant.

On 10 January 1987, he was appointed in the Texas Army National Guard and served in that component as a commissioned officer until 23 November 1989.

The applicant was ordered to active duty on 24 November 1989 and was honorably released from active duty on 31 July 1992 under the provisions of Army Regulation 635-100, chapter 3 based on Reduction in Authorized Strength. After his release from active duty, the applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).

On 8 January 1993, the applicant applied for Federal recognition as a first lieutenant in the Army National Guard.

By memorandum dated 29 January 1993, the Office of Reserve Components Promotions of the U.S. Total Army Personnel Command (PERSCOM) notified the applicant that he was selected for promotion to the next higher grade in the Reserve component with a promotion eligibility date (PED) of 26 May 1993.
On 12 March 1993, the applicant was appointed as a Reserve commissioned officer in the Texas Army National Guard in the rank of first lieutenant. He was granted Federal recognition in the Army National Guard by National Guard Bureau Special Orders Number 46, dated 12 May 1993.

By memorandum dated 14 April 1993, the Office of Reserve Components Promotions of the PERSCOM notified the applicant that he was promoted to captain in the Reserve component with an effective date of 26 May 1993.

On 28 September 1994, the Office of Reserve Components Promotions of PERSCOM notified the National Guard Bureau that the applicant had been selected for promotion to the grade of captain by the Reserve Components Selection Board which adjourned on 18 December 1992 and with a PED of 26 May 1993.

The applicant’s records contain an undated memorandum in which he elected to decline his promotion to the grade of captain for two years under the provisions of Army Regulation 135-155, paragraph 4-24c.

The applicant provided a copy of State of Texas Adjutant General’s Department Orders Number 335-96, dated 1 December 1995, which promoted him to the rank of captain in the Army National Guard with an effective date of 17 October 1995.

The applicant was granted Federal recognition by Special Orders Number 153, dated 18 December 1995, for his promotion to the rank of captain with an effective date of 17 October 1995.

Records show the applicant submitted a DA Form 4187 (Personnel Action), undated, requesting separation from the Army National Guard under the provisions of NGR 635-100, paragraph 5a(3) with an effective date of 15 August 1998. The applicant’s commander recommended approval of his request for separation on 7 August 1998. As a result, orders were published which separated the applicant from the Army National Guard on 15 August 1998 and transferred him to the IRR. The applicant is currently serving in the USAR in the rank of captain.

In the processing of this case, a staff advisory opinion was obtained from the U.S. Army Total Army Personnel Command, Office of Reserve Component Promotions. On 19 April 2001, the applicant was provided 30 days to submit matters in rebuttal to this opinion; however, the applicant did not respond within the time allotted.

This opinion states that the officer was considered for promotion to captain by the 1993 DA Reserve Components Selection Board and was recommended for promotion. The opinion points out that a promotion order was issued on 14 April 1993 which established 26 May 1993 as his date of rank. Further, the opinion notes that their office was subsequently notified that the officer had been transferred to the National Guard on 12 March 1993 prior to issuance of his promotion order. The opinion notes that his promotion memorandum was voided and that a memorandum was sent to the National Guard Bureau which advised them of the officer’s selection for promotion. In addition, the opinion notes that this memorandum stated that the officer’s effective date will be the date shown after “A", the date Federal recognition is extended in the higher grade or the day following the day Federal recognition is withdrawn and he is transferred to the USAR Control Group, whichever is later. In conclusion, the opinion notes that the officer was granted Federal recognition on 17 October 1995 and that the application should be denied.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to captain through lieutenant colonel.

Paragraph 4-2 of Army Regulation 135-155 provides guidance in cases when an officer’s status changes while under consideration by a mandatory promotion board. The regulation states that an officer considered for promotion by a mandatory selection board will be monitored by the promotion authority until the board consideration is concluded. Further, this occurs when an officer changes from a unit to nonunit status or from the Army Reserve to the Army National Guard or vice versa and requires the losing command to notify the gaining command of the selection board results.

Paragraph 2-24c of Army Regulation 135-155 provides for declination of promotion. The regulation states that Army National Guard officers will be notified of selection to the next higher grade, and, if they decline promotion, then the notification and endorsement declining promotion will be forwarded by the State Adjutant General to the Army National Guard Personnel Directorate. The regulation allows declination of promotion for one year, but it may be extended to three years in the case of Army National Guard Officers. This provision is invoked, for example, by officers when there is no unit position vacancy available in which to be promoted.

National Guard Bureau Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition for members of the Army National Guard. Paragraph 10-1 of the regulation states that commissioned officers of the Army National Guard are appointed and promoted by the States under Article 1, Section 8 of the Constitution of the United States. Further, the regulation specifies that, in order for an officer to be concurrently appointed, promoted, or receive a branch transfer as a Reserve commissioned officer of the Army, the State action must be federally recognized.

Section 14308(e)(2) of Title 10, United States Code, governs effective date of promotion after Federal recognition. This law states that the effective date of promotion for a Reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the Army National Guard shall be the date on which such Federal recognition in that grade is so extended.

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 was selected for promotion to the rank of captain in the USAR by a Department of the Army mandatory promotion board with an effective date of promotion of 26 May 1993.

2. Prior to the effective date of the applicant’s promotion to captain in the USAR, he was granted Federal recognition as a first lieutenant in the Army National Guard.

3. As a result of his transfer to the Army National Guard, his promotion to captain in the USAR was voided and the Office of Reserve Components Promotions of PERSCOM notified the National Guard Bureau of the applicant’s eligibility for promotion to captain.

4. The applicant subsequently declined promotion for two years.

5. Effective 17 October 1995, the applicant was promoted to captain in the Army National Guard and was granted Federal recognition to captain that same day.

6. Based on law, the applicant’s date of rank to captain in the Army National Guard was properly established as the date he was federally recognized as a captain. Therefore, he is not entitled to adjustment of his date of rank for promotion to captain from 17 October 1995 to 26 May 1993.

7. 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.

8. 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

CLA_____ DPH_____ CLG_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001052598
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010911
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.0700
2.
3.
4.
5.
6.