RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20040005724


      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. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, in effect, that his effective date of promotion
be changed to 1 January 1999.

2.  The applicant states that he was selected for promotion to the grade of
major under the provisions of Army Regulation 135-155 (Promotion of
Commissioned Officers and Warrant Officers Other Than General Officers) by
a Department of the Army Mandatory Selection Board which adjourned on 5
April 2001.

3.  The applicant continues that his effective date of promotion should
have been as early as 1 January 1999 or no later than the date following
the date his Federal Recognition was terminated in the grade of captain.
The applicant further states that he joined the District of Columbia Army
National Guard (DCARNG) on 29 April 2001.

4.  The applicant contends that if he had never joined the DCARNG, his
effective date of rank would have been as early as 1 January 1999 and that
if the DCARNG Officer Strength Manager would have informed him of the delay
in his promotion, he would have remained in the U.S. Army Reserve (USAR)
until he received his promotion to major.

5.  The applicant provides a DA Memorandum, dated 26 July 2001; DCARNG
Orders Number 120-022, dated 30 April 2001; DCARNG Orders Number 059-049,
dated 5 April 2002; National Guard Bureau Federal Recognition Orders
133 AR, dated 9 May 2002; DCARNG Orders Number 218-022, dated 6 August
2002; a copy of his DD Form 214 (Certificate of Release or Discharge From
Active Duty); and a copy of his Active Duty Officer Record Brief.

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant served as a commissioned officer in the
Regular Army prior to transferring to the USAR.  The applicant was
appointed in the USAR in the grade of captain on 31 January 1999 and served
until he transferred to the DCARNG on 29 April 2001.

2.  The applicant's records were considered for promotion to major by the
Department of the Army Reserve Component Mandatory Promotion Board which
convened on 6 March 2001 and adjourned on 5 April 2001.  The President
approved the results of this Board on 25 July 2001.

3.  The applicant's records contain a U.S. Total Army Personnel Command
memorandum, dated 26 July 2001, which states that the applicant was a
member of the Army National Guard of the United States and that he was
selected for promotion to the grade of major.

4.  This memorandum further states that the applicant's promotion
eligibility will be either 31 December 1998 [the date shown after A on the
letter]; the date Federal Recognition is extended in the higher grade; or
the date following the date Federal recognition is terminated in current
Reserve grade.

5.  This memorandum also states that the if the officer accepts promotion
and Federal recognition is not extended in the next higher grade, he/she
will be transferred in his/her current grade to the USAR on the day
following the date of termination of Federal Recognition.

6.  DCARNG Orders Number 120-022, dated 30 April 2001, show that the
applicant was appointed in the DCARNG, in the grade of captain, effective
29 April 2001.

7.  On 29 April 2001, the applicant executed an oath of office as a captain
in the DCARNG and was awarded temporary Federal Recognition.

8.  National Guard Bureau Federal Recognition Orders 130 AR, dated 14 May
2001, show that the applicant was awarded permanent Federal Recognition for
initial appointment to the grade of captain effective 29 April 2001.

9.  DCARNG Orders Number 059-049, dated 5 April 2002, show that the
applicant was promoted to the grade of major, effective 4 April 2002.

10.  National Guard Bureau Federal Recognition Orders 133 AR, dated 9 May
2002, show that the applicant was awarded permanent Federal Recognition for
promotion to the grade of major effective 9 May 2002.

11.  DCARNG Orders Number 218-022, dated 6 August 2002, show that the
applicant was ordered to full-time National Guard Duty in the Active
Guard/Reserve (AGR) for the period 15 August 2002 through 14 August 2005.

12.  The staff of the ABCMR forwarded the applicant's request for
correction of his military records to the National Guard Bureau for review
and requested that they provide a comprehensive opinion.

13.  On 23 June 2005, the Chief of the Personnel Division of the National
Guard Bureau provided an advisory opinion which essentially stated that
promotion of officers in the Army National Guard is a function of the State
Adjutant General and that if the Adjutant General chooses not to promote an
officer, he or she is not obligated to do so.

14.  This opinion further states that the advisory opinion request was
returned without action because the applicant was under the control of the
USAR in January 1999 and that the National Guard has no authority to
recommend adjustment of the applicant's date of rank to 1 January 1999
because he was assigned to the USAR at the time.

15.  On 1 July 2005, a copy of the NGB advisory opinion was sent to the
applicant for review and comment.

16.  On 8 July 2005, the applicant provided a two-page written response to
the advisory opinion.

17.  The applicant essentially stated that he was selected for promotion to
the grade of major by the Department of the Army Mandatory Board which
adjourned on 5 April 2001.

18.   The applicant continued that had he received official notification
that the Department of the Army had considered or selected him for
promotion to major he would have remained in the Reserves a few additional
weeks to receive his promotion to major with the date of rank of 1 January
1999.

19.  The applicant further argues that he was not provided valid
information and his available options; therefore, he was promoted to the
grade of major over one year after he was eligible.

20.  The applicant also contends that because of the delay in his promotion
to major, he will now be delayed for consideration for promotion to the
grade of lieutenant colonel.

21.  The applicant concludes that his date of rank to major should be
adjusted to show the effective date 1 January 1999.




22.  Army Regulation 135-155 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.

23.  Paragraph 2-5 of Army Regulation 135-155 states that to be eligible
for promotion to the next higher grade, an Army National Guard or USAR
officer must have continuously performed either on the Reserve Active
Status List or the Active Duty List during the 1-year period ending on the
convening date of the promotion board, and must meet the time-in-grade
requirements as appropriate.

24.  Paragraph 4-2 of Army Regulation 135-155 states, in pertinent part,
that an officer whose name has been submitted to a mandatory selection
board and who moves from the USAR to the Army National Guard will be
monitored by the promotion authority submitting his or her name until board
consideration is concluded.  The losing command will notify the gaining
command of the selection board results so that the officer may be informed
at the proper time.

25.  Title 10, United States Code, Section 12203 (a) states:  “Appointments
of reserve officers in commissioned grades of lieutenant colonel and
commander or below, except commissioned warrant officer, shall be made by
the President alone.”  Subsequently, in a 22 April 1997 legal opinion on
effective dates of promotion for reserve officers under the Reserve
Officers Personnel Management Act, the Chief of the Military Personnel Law
Branch, Office of the Judge Advocate General, opined that the effective
date of promotion of reserve component officers may not predate the
approval of the promotion board results by the President.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the effective date of his promotion to
major should be 1 January 1999 because he was selected for promotion by a
Department of the Army Reserve Component Selection Board.

2.  Evidence of record shows that the applicant was placed on the Reserve
Active Status List on 31 January 1999 upon his appointment in the USAR.
The applicant's status on the Reserve Active Status List did not change
when he joined the DCARNG.



3.  Although required by regulation, there is no evidence that the USAR
notified the Army National Guard that the applicant was under consideration
for promotion to major by Department of the Army Reserve Component
Selection Board.

4.  The applicant was recommended for promotion to the grade of major by
the Department of the Army Reserve Component Mandatory Promotion Board
which was approved by the President on 25 July 2001.

5.  Although the applicant transferred to the Army National Guard prior to
the results of the Board, he was on the Reserve Active Status List and had
been on that list for one continuous year on 25 July 2001 which was the
date that the President approved the results of the Board.  Therefore, in
accordance with applicable law and regulation the applicant is entitled to
have his records corrected to show that he was promoted to the grade of
major on 25 July 2001 with a date of rank of 25 July 2001.

6.  Based on paragraph 5 above, it would be appropriate to amend Federal
Recognition Order Number 133 AR, dated 9 May 2002, to show the effective
date of permanent Federal Recognition for promotion to the grade of major
was 25 July 2001.

7.  Although the applicant requested that his effective date of rank be
adjusted to 1 January 1999, he was not on the Reserve Active Status List
until 31 January 1999 and had not completed one year of continuous service
on the Reserve Active Status List .  Based on these facts, the applicant is
not entitled to have his records corrected to show the effective date of
promotion of 1 January 1999.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_DJ_____  __JS____  _MJF___  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.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing that he was promoted to the grade of
major on 25 July 2001 and by amending Federal Recognition Order Number 133
AR, dated 9 May 2002, to show the effective date of rank for promotion to
the grade of major was 25 July 2001.

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
the request for adjustment of his date of rank to show that he was promoted
to the grade of major effective 1 January 1999.





                                     __John N. Slone___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005724                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]