RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             JUNE 3, 2004
      DOCKET NUMBER:     AR2003084830


      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. Jessie B. Strickland          |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Luther L. Santiful            |     |Chairperson          |
|     |Mr. Roger W. Able                 |     |Member               |
|     |Mr. Patrick McGann                |     |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 that he be promoted to the rank of captain (CPT)
with a date of rank (DOR) of 1 August 2002 and that his pay entry basic
date (PEBD) be adjusted to 8 February 1991.

2.  The applicant states, in effect, that he served as a commissioned
officer for 3 years in a troop program unit (5 May 1989 to 12 March 1992)
and the remainder of service in the Individual Ready Reserve (IRR), for a
total of 8 years of commissioned service.  He was reappointed in the United
States Army Reserve (USAR) on 1 August 1992 and should have been promoted
to the rank of CPT at that time.  He had 3 years, 10 months and 20 days of
enlisted service for a total of 11 years, 10 months and 8 days of service.
He further states that he has completed the educational requirements for
promotion to captain and there is a position available to him as a CPT.  He
also states that he has been unable to obtain his Official Military
Personnel File (OMPF) and has exhausted all administrative remedies to
resolve the discrepancies involved with his promotion.

3.  The applicant provides a copy of his resume, a letter of acceptance for
assignment to a CPT position, his oath of office and reports of separation
from the Kentucky Army National Guard (KYARNG), his oath of office as a
USAR second lieutenant (2LT), his reports of separation from active duty
(DD Form 214), and a page from his enlistment contract for entry into the
KYARNG.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records, though somewhat incomplete, show that he
initially enlisted in the KYARNG on 25 June 1985, for a period of 8 years.
He continued to serve until he was honorably discharged from the KYARNG in
the pay grade of E-3 on 4 May 1989, to accept a commission as a 2LT.  He
was transferred to the USAR and on 5 May 1989, he accepted a USAR
commission as a 2LT, upon graduation from the Reserve Officer Training
Corps Program.  On 1 December 1989, he accepted an appointment as a 2LT in
the KYARNG and served until he was honorably discharged on 5 June 1991 and
was transferred to the USAR Control Group (IRR).  He entered active duty
for training on 26 October 1991 and attended the Engineer Officer Basic
Course at Fort Leonard Wood, Missouri, until he was released from active
duty (REFRAD) on 12 March 1992.

2.  For reasons that are not apparent in the available records, the
applicant was again appointed as a USAR 2LT on 1 August 2002.

3.  On 13 August 2003, a memorandum was published by the Total Army
Personnel Command in St. Louis, Missouri, promoting the applicant to the
rank of first lieutenant, with a DOR of 12 March 1992.

4.  On 8 April 2004, the Fiscal Year 2003 Captain Reserve Components
Selection List was released and the applicant's name was announced on that
list. He was promoted with a DOR of 11 March 2004.

5.  The applicant has provided no evidence to show that his PEBD is
incorrect and there is no evidence in the available records to show what
his current PEBD is.  However, it does not appear that he has had a break
in service and therefore it should be the date he initially enlisted (25
June 1985).

6.  The applicant's OMPF contains only one officer evaluation report
covering the period from December 1990 to March 1991, while serving in the
Kentucky ARNG.

7.  Army Regulation 135-155 prescribes the policies and procedures used in
the selection and promotion of commissioned officers of the Army National
Guard and USAR.  It provides, in pertinent part that the maximum time in
grade for USAR officers being promoted to the rank of captain is 4 years in
grade and the maximum years of commissioned service is 6 years.  Officers
selected by mandatory boards will be promoted effective the date the
selection list is approved.

8.  Section III (Dates of Promotion) of the regulation provides the
procedures for computing promotion effective dates of all RC officers.  It
states, in pertinent part, that unless otherwise entitled by law, that
antedating of either the effective date of promotion or the promotion
eligibility date (PED) will not entitle an RC officer to increased pay and
allowances.

9.  However, section III of the regulation does establish that the PED and
DOR is the date the officer meets the eligibility criteria for promotion to
the next higher grade.  In addition, it indicates that an officer’s PED
will become his DOR upon promotion and this date will be used to establish
the relative seniority for officer’s holding the same rank.  Finally, it
states that DOR will be used to establish the officer’s PED to the next
higher grade.

10.  Title 10 of the United States Code, section 14304 (10 USC 14304)
provides the legal authority for eligibility for consideration for
promotion based on MYIG provisions of the law.  Paragraph (a) states, in
pertinent part, that officers shall be placed in the promotion zone and
shall be considered for promotion to the next higher grade by a promotion
board convened under section 14101(a) of this title, far enough in advance
of completing the MYIG so that, if the officer is recommended for
promotion, the promotion may be effective on or before the date on which
the officer will complete those years of service.  If the officer occupies
a position equal to or higher than the grade to which they are being
promoted, they may be promoted before they reach their MYIG.  This
provision of the law establishes the MYIG for 1LT going to CPT as 4 years.

11.  Paragraph (b) of 10 USC 14304 states, in effect, that an RC officer
who is recommended for promotion to the next higher grade by a selection
board the first time they are considered for promotion and who is placed on
an approved promotion list shall (if not promoted sooner or removed from
that list by the President or by reason of declination) be promoted,
without regard to the existence of a vacancy, on the date on which the
officer completes the MYIG specified in this law.

12.  A separate provision of the law, 10 USC 12203 establishes, in effect,
that
RC officers on a promotion list will be promoted when the report of the
selection board is approved by the President.  Therefore, under this
provision of the law, the promotion effective date is the date the list is
signed by the President.  It is also codified in the law that, in effect,
if a RC officer’s promotion is adjusted to reflect a date earlier than the
actual effective date of promotion, for example a DOR adjustment based on
MYIG, this does not entitle them to additional pay or allowances.

DISCUSSION AND CONCLUSIONS:

1.  The available records (OMPF) in this case clearly indicate that the
applicant has not exercised due diligence in ensuring that his records were
up to date, especially from the time that he transferred from the KYARNG to
the USAR.  The individual Soldier bears the majority of the burden for
ensuring that their records are up to date and correct and it appears that
he has not done so in this case.

2.  Accordingly, there is little or no information for the Board to review
in order to establish why the applicant was not promoted to the rank of 1LT
sooner.

3.  However, the evidence does show that once it was determined that he was
eligible for promotion, he was also selected and promoted to the rank of
CPT by the next available and duly constituted promotion selection board.

4.  Therefore, absent records to document his service and performance, ie,
a complete OMPF, and evidence to show that he was not properly promoted, it
would not be prudent for the Board to accept on face value that he is
entitled to an earlier promotion to the rank of captain.

5.  In order to justify correction of a military record the applicant must
show 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

lls___   __  ra___  __  pm______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ___Luther L. Santiful___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003084830                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040603                                |
|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                  |315/DOR                                 |
|1.131.0500              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |