RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 February 2005
      DOCKET NUMBER:  AR20040001394


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      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 his date of rank and effective date of
promotion to captain be adjusted to 14 September 1998 and his promotion
eligibility date be adjusted to 12 December 1997.

2.  The applicant states that, although the effective date of an officer's
promotion cannot be prior to the approval date of the promotion board, that
does not preclude a change to the date of rank.  In the interest of equity,
based on the maximum years in grade provision of the law, his request
should be granted in order for him to remain competitive with his peers.

3.  The applicant provides his first lieutenant promotion orders; his
captain promotion orders; his Federal recognition orders; a DD Form 214
(Certificate of Release or Discharge from Active Duty) with a period ending
6 October 2003; a Personnel Qualification Record (Commissioned Officer)
dated 7 May 2004; and a prior Board case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 June 1999.  The application submitted in this case is
dated 7 May 2004.

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 was appointed a second lieutenant in the U. S. Army
Reserve (USAR) and entered active duty on 13 September 1991.  He was
promoted to first lieutenant effective 13 September 1993.  He was released
from active duty 15 September 1995 and transferred to the USAR Control
Group (Reinforcement).

4.  The applicant was appointed a first lieutenant in the Pennsylvania Army
National Guard (PAARNG) effective 30 November 1995.

5.  The applicant was considered and selected for promotion to captain by
the 1997 Reserve Component Selection Board, which adjourned on 12 December
1997.  The President approved the results of the board on 25 June 1998.
The Army National Guard Personnel Center was notified by memorandum dated
  30 July 1998 that he had been selected for promotion with a promotion
eligibility date of 14 September 1998 (to be used in computing time in
grade for Reserve promotion to the next higher grade).  They were also
informed that the effective date of the promotion would be the later of:
(a)  14 September 1998; (b) the date Federal Recognition was extended in
the higher grade; or (c) the date following the date Federal Recognition
was terminated in the current Reserve grade.

6.  Department of Military and Veterans Affairs, The Adjutant General,
PAARNG Orders 231-020 dated 3 December 1998 promoted the applicant to
captain effective 3 December 1998.  The additional instructions noted "MTOE
NG06365L02 Para 117C Line 01."  They also noted that the effective date of
promotion in the Army National Guard of the United States (ARNGUS) would be
the date permanent Federal Recognition orders were published.

7.  National Guard Bureau Special Orders Number 2 AR dated 6 January 1999
extended Federal Recognition to the applicant as a captain effective 6
January 1999.

8.  The applicant was discharged from the PAARNG on 23 June 1999 and
transferred to the USAR.  He was assigned to a Troop Program Unit (TPU) on
an unknown date.  He was ordered to active duty in support of Operation
Enduring Freedom on 27 January 2003 and released from active duty on 6
October 2003.  His DD Form 214 for this period shows his effective date of
pay grade as           12 December 1997.  His Personnel Qualification
Record (Commissioned Officer) shows his date of rank as 12 December 1997.

9.  National Guard Regulation 600-100 prescribes policies and procedures
governing, in part, the appointment, Federal Recognition, and separation of
commissioned officers of the ARNG.  Chapter 8 states that the promotion of
officers in the ARNG is a function of the State.  A commissioned officer
promoted by State authorities has a State status in the higher grade under
which to function.  However, to be extended Federal Recognition in the
higher grade, the officer must have satisfied the requirements prescribed
in this chapter.

10.  National Guard Regulation 600-100, paragraph 8-6 states that wearing
of insignia of the higher grade is not authorized until Federal Recognition
has been extended by the Chief, National Guard Bureau.  Paragraph 8-15
states that an ARNG commissioned officer, not on active duty, who is
selected for promotion as a Reserve commissioned officer of the Army
resulting from mandatory consideration may be extended Federal Recognition
in the higher grade subject to several conditions, including that the
officer has reached promotion eligibility date and that the officer is
promoted in State status to fill an appropriate position vacancy in the
higher grade.

11.  Title 10, U. S. Code, section 14304 states that officers shall be
placed in the promotion zone for that officer’s grade and competitive
category and shall be considered for promotion to the next higher grade by
a promotion board far enough in advance of completing the years of service
in grade specified 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.  The maximum years of service for
promotion to the rank of captain is 5 years.  The maximum years of service
for promotion to the rank of major is 7 years.

12.  Title 10, U. S. Code, section 14308(c)(2) states that, except as
specifically authorized by law, a Reserve officer is not entitled to
additional pay or allowances if the effective date of the officer’s
promotion is adjusted to reflect a date earlier than the actual date of the
officer’s promotion.

13.  Title 10, U. S. Code, section 14316(d) states that if, on the date on
which an officer of the ARNGUS who is on a promotion list as a result of
being recommended by a mandatory selection board is to be promoted, the
officer has not been promoted to fill a vacancy in the higher grade in the
ARNG, the officer's Federal Recognition in the officer's Reserve grade
shall be withdrawn and the officer shall be promoted and transferred to the
USAR as appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had been promoted to first lieutenant in September 1993.
Even though he was selected for promotion to captain by a board which
adjourned on 12 December 1997 and whose results were approved on 25 June
1998, his promotion eligibility date to captain was 14 September 1998 (5
years time in grade as a first lieutenant).  The soonest he could have been
promoted to captain (both date of rank and effective date) would have been
September 1998.

2.  However, the applicant was in a PAARNG unit in 1998.  In accordance
with law and regulation, he would not have been eligible for promotion to
captain in September 1998 unless he was in a captain's position at that
time.  It appears he was not placed in a captain's position until 3
December 1998, as per his captain promotion orders dated 3 December 1998.

3.  National Guard Regulation 600-100 states that an ARNG commissioned
officer, not on active duty, who is selected for promotion as a Reserve
commissioned office of the Army resulting from mandatory consideration may
be extended Federal Recognition in the higher grade subject to several
conditions, including that the officer has reached promotion eligibility
date and that the officer is promoted in State status to fill an
appropriate position vacancy in the higher grade.

4.  The evidence available shows the applicant met the conditions for
promotion to captain on 3 December 1998; however, Federal Recognition was
not extended until 6 January 1999.  His Federal Recognition appears to have
been delayed for an unknown reason.  It would be equitable to show he was
extended Federal Recognition effective 3 December 1998.

5.  The applicant was discharged from the PAARNG on 23 June 1999 and
transferred to the USAR.  While the law provides for the withdrawal of
Federal Recognition of an officer who has not been promoted to fill a
vacancy in the higher grade in the ARNG and promotion of the officer and
transfer to the USAR, it does not provide for the adjustment of date of
rank or effective date for an officer who waits for and accepts an ARNG
position vacancy then later transfers to the USAR.

6.  The applicant's DD Form 214 for the period ending 6 October 2003 and
his Personnel Qualification Record (Commissioned Officer) are in error when
they show his date of rank and/or effective date of pay grade to be 12
December 1997.  In no case could he have been promoted to captain earlier
than              14 September 1998, and he was actually promoted to
captain, with this Board correcting his effective date (i.e., the date
Federal Recognition was granted), on  3 December 1998.  He should retain 3
December 1998 as his date of rank and effective date of pay grade.
However, his promotion eligibility date to major will still be computed
from 14 September 1998.  He therefore remains competitive with his peers.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__mhm___  __lmb___  __ljo___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by amending Federal
Recognition Order Number 2 AR to show that he was extended Federal
Recognition effective 3 December 1998 in the grade of captain.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
adjusting his date of rank and effective date of promotion to captain to 14
September 1998 and his promotion eligibility date to 12 December 1997.




            __Melvin H. Meyer_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001394                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050203                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.04                                  |
|2.                      |131.05                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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