MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2002081326

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Ms. Gail J. Wire		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 date of rank for captain be adjusted to 30 November 1995.

APPLICANT STATES: That he was selected for promotion to captain by a Unit Vacancy Board (UVB) in June 1995, and before he could be promoted, he volunteered to be activated in support of Operation Joint Endeavor. He was released from active duty on 21 September 1996 and assigned back to his former unit. At this point, his time in grade as a first lieutenant was 3 years and 8 days. He was not promoted or afforded the opportunity to be presented to a captain promotion board in 1995 or 1996, which is in violation of Army Regulation 135-155, section 2-5a. He was selected for promotion to captain by a board adjourning on 12 December 1997. He knows, that had he been afforded this first consideration, he would have been promoted. Although the effective date of an officer’s promotion cannot be prior to the approval date of the board, this does not preclude a change to his date of rank in the interest of equity, based on his maximum time in grade (MTIG) date, in order for him to remain competitive with his peers. He is asking the Board to take action and adjust his date of rank for captain and promotion eligibility date to the next higher grade to 30 November 1995. This action will allow him to submit a packet for the major promotion board in March 2003. In support of his application he submits copies of his promotion orders for first lieutenant, his DD Form 214 (Certificate of Release or Discharge from Active Duty, his appointment orders for the Pennsylvania Army National Guard (PAARNG), several of his officer evaluation reports, his active duty orders, and award orders.

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

He was commissioned into the Regular Army as a second lieutenant and entered on active duty effective 13 September 1991.

He was promoted to first lieutenant effective 13 September 1993.

He was released from active duty effective 15 September 1995 and transferred to the USAR Control Group (Reinforcements).

He was appointed in the PAARNG as a first lieutenant effective 30 November 1995.

The applicant states that he was considered and selected for promotion to captain by the December 1995 UVB. There is no evidence in his records that show he was considered and selected by a 1995 UVB.

He was ordered to active duty for 270 days effective 14 January 1996 in support of Operation Joint Endeavor. He was released effective 21 September 1996 and returned to his PAARNG unit.
Based on the required 5 years time in grade (Post Reserve Officer Personnel Management Act (ROPMA)), his MTIG date for captain was 12 September 1998.

The Office of Reserve Promotions, Total Army Personnel Command verified that he was considered and selected for promotion to captain by the 1997 Reserve Components Selection Board (RCSB), which adjourned on 12 December 1997.
The President approved the results of the board on 25 June 1998. He was promoted to captain effective 14 September 1998.

Army Regulation 135-155, in effect at the time, prescribed the policies and procedures for promotion of Reserve Component officers. This regulation provided that individuals would receive mandatory promotion consideration prior to their promotion eligibility dates so that, if selected, they may be promoted on their future promotion eligibility dates. The regulation also specified that promotion to captain requires 5 years in the lower grade (Post ROPMA).

The regulation also specifies that officers in the grade of first lieutenant may be eligible for promotion consideration to captain by a UVB upon completion of 2 years MTIG and promotion to fill authorized troop program unit position vacancies may be filled through promotion of the best qualified and geographically available officer to the grades of captain through colonel. All unit officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available to serve in the position for which considered.

National Guard Bureau (NGB) Regulation 600-100, chapter 8, established the policies and procedures for promotion of officers in the ARNG. Essentially, officers serving in a unit where a position vacancy exists may be promoted by order of the Governor of the State to fill the position vacancy. However, until Federal Recognition in the new rank is confirmed by the NGB, the individual cannot be paid at the pay scale for the higher rank. In cases involving promotions to captain and above, the NGB has advised in similar cases that the recommendations for promotion must be processed through the Departments of the Army and Defense staff to obtain approval of the promotion by the President. This approval process normally takes approximately 3 months.

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 Reserve component officers. The law was implemented on 1 October 1996. ROPMA specifies that a first lieutenant will receive mandatory promotion consideration for promotion to captain upon completion of 5 years in the lower grade.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of rank for captain to 3 November 1995. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board has noted his contentions; however, the applicant has not shown that he was considered and selected by a 1995 UVB and placed in a captain position and extended Federal Recognition prior to being ordered to active duty or upon his release. The applicant has not submitted evidence that he was appropriately promoted to captain on or after 30 November 1995. The Board cannot presume that he would have been promoted on or after his selection by the 1995 UVB with a date of rank and promotion effective date of 30 November 1995.

3. The Board also notes that he was appropriately considered for promotion to captain by the 1997 RCSB in advance of his MTIG and having served 5 years as a first lieutenant. He was selected by that board and promoted to captain.

4. 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.

5. 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

_GJW____ _SK____ _RVO___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081326
SUFFIX
RECON
DATE BOARDED	20030515
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.05
3.	131.10
4.
5.
6.