RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  4 May 2004
      DOCKET NUMBER:  AR2003088046


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. Joe Schroeder                 |     |Member               |
|     |Mr. William Powers                |     |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 adjustment to his date of rank for captain.

2.  The applicant states that on 5 July 1996 he was selected for promotion
to captain by a mandatory promotion board.  He and his battalion never
received any communication concerning this promotion.  He continued in the
Army National Guard (ARNG) as a first lieutenant for more than 7 years and
was totally ignorant of the correct process in this matter.  He also states
that he was promoted in the ARNG to captain effective 3 January 2003.

3.  The applicant provides copies of his promotion eligibility memorandum
for captain and his Federal Recognition orders for promotion to captain.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged injustice which
occurred on 1 June 1996, the date he should have been extended Federal
Recognition.  The application submitted in this case is dated 21 February
2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show he was appointed in the United
States Army Reserve (USAR) as a second lieutenant effective 7 July 1989 and
entered on active duty effective 16 July 1989.

4.  The applicant was released from active duty effective 15 March 1990 and
transferred to the USAR Control Group (Reinforcement).

5.  The applicant was appointed in the Puerto Rico (PR) ARNG as a second
lieutenant effective 19 June 1991.  He was promoted to first lieutenant
effective 6 July 1992.

6.  Based on the required completion of 4 years time in grade, in effect at
the time, his promotion eligibility date for promotion to captain was
5 July 1996.

7.  He was considered and selected for promotion to captain by the 1995
Reserve Components Selection Board (RCSB), which convened on 14 November
and recessed on 15 December 1995.  The President approved the board results
on 16 February 1996.

8.  On 1 March 1996, the Chief, Office of Promotions, Reserve Components,
Total Army Personnel Command issued to the ARNG Personnel Center a
promotion eligibility memorandum for the applicant.  The memorandum advised
that the applicant had been selected for promotion to captain with a date
of rank (promotion eligibility date) of 5 July 1996.  The memorandum also
stated the promotion eligibility date would be used in computing time in
grade for Reserve promotion to the next higher grade.  The promotion
effective date would be the later of his promotion eligibility date or the
date Federal Recognition is extended in the higher grade.

9.  Orders number 177-32, dated 24 September 2002, show the PRARNG
reassigned the applicant to a captain's position effective 23 September
2002.

10.  Orders Number 222-2, dated 25 November 2002, show the PRARNG promoted
the applicant to captain with a promotion effective date of 22 November
2002.  Additional instructions indicated the officer would not be paid as a
captain until Federal Recognition was issued.

11.  Orders Number 1 AR, dated 3 January 2003, show he was extended Federal
Recognition for promotion to captain with a promotion effective date and
date of rank of 3 January 2003.

12.  National Guard Bureau (NGB) Regulation 600-100, chapter 8 establishes
the policies and procedures for promotion of officers in the ARNG.
Essentially, officers serving in a unit where a position vacancy exits may
be promoted by the State to fill the position vacancy.  However, until
Federal Recognition in the new rank is extended by the NGB, the individual
cannot be paid for the higher rank.  The NGB has advised in similar cases
such as this that recommendations for promotion must be processed through
NGB staff to obtain approval of the promotion by the President, and that
the approval process normally takes approximately 3 months.

13.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve and ARNG officers.  This regulation specifies that the
promotion effective date and date of rank of an officer selected by a
mandatory promotion board would be the later of his/her promotion
eligibility date or the date Federal Recognition is extended in the higher
grade.





DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
correction to his promotion effective date and date of rank for captain to
23 September 2002, the date of his assignment to a captain's position.

2.  It appears that the applicant's unit did not proceed with processing
his promotion selection to captain until his placement in the higher grade
in September 2002.  He was selected by the 1995 RCSB that had a
presidential approval date of 16 February 1996 and he would have been
entitled to promotion after his assignment to a captain's position and 3
months from the date his promotion packet was received at the NGB for
extension of Federal Recognition. All evidence points to the fact that his
original promotion eligibility memorandum was either lost or misplaced due
to no negligence on his part.

3.  There is no evidence in his records to show any derogatory information,
which would have prevented an earlier promotion.  His promotion was delayed
for over 6 years and not acted upon until his placement in a captain's
position on 23 September 2002.

4.  The processing of the applicant's promotion selection was
administratively delayed through no fault of the applicant and he should
not be penalized for the delay.   Therefore, as a matter of equity in this
case, his promotion effective date and date of rank for captain should be
adjusted to the date when he was assigned to a captain's position, with
entitlement to all back pay and allowances.

5.  In view of the foregoing, and insofar as the Department of the Army is
concerned, the applicant’s records should be corrected as recommended
below.

BOARD VOTE:

__sk____  ___js___  __wp____  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 and to excuse failure to timely file.  As a
result, the Board recommends that all of the Puerto Rico Army National
Guard records, the National Guard Bureau records, and the Department of the
Army records of the individual concerned be corrected:

      a.  by showing that he was promoted to captain with a promotion
effective date and date of rank of 23 September 2002, with entitlement to
back pay and allowances; and


      b.  by amending Federal Recognition Order Number 1 AR to show that he
was extended Federal Recognition in the grade of captain with a promotion
effective date and date of rank of 23 September 2002, with entitlement to
back pay and allowances.





            ____Stanley Kelley___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003088046                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040504                                |
|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.                      |                                        |