RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 June 2005
      DOCKET NUMBER:  AR20040005904


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 date of rank (DOR) to
lieutenant colonel and his Federal Recognition be corrected to show the
effective date 22 July 1999.  The applicant also requests that his Officer
Evaluation Reports (OERs) for the time period he would have been rated as a
lieutenant colonel be corrected to show the rank of lieutenant colonel.

2.  The applicant states, in effect, that his promotion orders and Federal
Recognition orders should have been immediately published when the results
of the 1998 Department of the Army Reserve Components Selection Board
(RCSB) for promotion to lieutenant colonel were released.

3.  The applicant continues that he was assigned to a position authorized
to be filled by a lieutenant colonel.

4.  The applicant provides an extract from the Office of the Deputy Chief
of Staff for Training, Table of Distribution and Allowances (TDA); a copy
of Departments of the Army and Air Force National Guard Bureau (NGB) Orders
070-005; a copy of Departments of the Army and Air Force National Guard
Bureau Orders 084-002; a copy of National Guard notice of promotion as a
Reserve Commissioned Officer of the Army; Department of the Army Federal
Recognition Orders Number 158 AR; Texas Joint Forces Headquarters Orders
169-1003; and a one page self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed as second
lieutenant in the United States Army Reserve on 20 May 1978.  The applicant
was promoted to first lieutenant on 19 May 1981 and was promoted to captain
on 12 June 1984.  On 22 July 1992, he was promoted to major.  Although his
records do not show when he transferred to the Army National Guard, he is
currently serving in the rank of lieutenant colonel in a Title 10 Active
Guard Reserve position at the Army National Guard Readiness Center in
Arlington, Virginia.

2.  NGB Orders 070-005, dated 11 March 1998, assigned the applicant as an
Army National Guard Plans Policy and Training (ARNG PPT) Coordinator at
Fifth U. S. Army Headquarters effective 1 July 1998.  The TDA for the Fifth
U.S. Army Deputy Chief of Staff for Training, effective 1 October 1999,
shows the applicant was assigned in the position of the ARNG PPT and that
this position was authorized [fill] an officer in pay grade O-5/lieutenant
colonel.
3.  The applicant's records were considered by the 1998 RCSB for promotion
to the rank of lieutenant colonel which convened on 6 September 1998 and
adjourned on 9 October 1998.  The President approved the results of the
1998 RCSB on 24 February 1999.

4.  By memorandum dated 25 March 1999, the applicant was notified by the
U.S. Army Human Resources Command-St. Louis that he was recommended for
promotion to lieutenant colonel.  The memorandum further stated that the
applicant's effective date of promotion would be either:  "a.  Date after A
above: which shows the entry "A – 22 July 1999" or "b.  Date Federal
Recognition is extended in the higher grade; or c.  Date following the date
Federal Recognition is terminated in current Reserve grade."

5.  Texas Military Forces Adjutant Generals Department Orders 169-1003,
dated 17 June 2004, promoted the applicant to the rank of lieutenant
colonel effective 17 June 2004.

6.  Department of the Army Federal Recognition Orders Number 158 AR, dated
25 June 2004, show that the applicant was awarded permanent Federal
Recognition in the grade of lieutenant colonel with an effective date of 25
June 2004.  These orders also show that the applicant's promotion
eligibility date was 10 August 1998.

7.  Part 1c (RANK) of the applicant's OERs filed on IPERMS show that he was
evaluated as a major in the OERs covering his service during the rating
periods 27 June 1999 through 26 June 2000, 27 June 2000 through 26 June
2001, 27 June 2001 through 15 March 2002, 22 April 2002 through 14 August
2002, 15 August 2002 through 14 August 2003, and 25 March 2003 through 24
March 2004.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other Than General Officers) prescribes the policies and
procedures for promotion of Reserve officers.  The regulation provides the
mandatory selection boards will be convened each year to consider Army
Reserve Officers in an active status for promotion to captain through
lieutenant colonel.

9.  Title 10, United States Code, Section 14304 provides the legal
authority for eligibility for consideration for promotion based on maximum
years of service in grade provisions of the law.  Subsection (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 maximum years of service in grade 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
table in subsection (a) establishes the maximum years of service in grade
for a captain to be promoted to major as seven years and for a major to be
promoted to lieutenant colonel as seven years.

10.  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.

11.  Army Regulation 623-105 (Officer Evaluation Reporting System)
establishes the policies and procedures for the OER system.  It provides
the opportunity to request a Commander's Inquiry or to appeal disputed
reports.  Paragraphs 3-57 and 6-6 provide that an OER accepted by
Headquarters, Department of the Army, and included in the official record
of an officer, is presumed to have been prepared by the properly designated
rating officials, and to represent the considered opinion and objective
judgment of the rating officials at the time of preparation.  Paragraph 3-
57of that regulation states that the burden of proof in an appeal of an OER
rests with the applicant.  Accordingly, to justify deletion or amendment of
an OER under the regulation, the applicant must produce evidence that
clearly and convincingly overcomes the presumptions referred to above and
that action to correct an apparent material error or inaccuracy is
warranted.

12.  Paragraph 6-10 of Army Regulation 623-105 places the burden of proof
on the applicant to provide clear and convincing evidence to justify
deletion or amendment of an OER.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was eligible for promotion to lieutenant
colonel on his promotion eligibility date of 22 July 1999 since he was
selected by the 1998 RCSB.  He also contends that he should have been
granted permanent Federal Recognition as a lieutenant colonel with an
effective date of 22 July 1999.

2.  Records show that the applicant was recommended for promotion by the
1998 RCSB for promotion to lieutenant colonel.  Records show that on
24 February 1999, the President approved the results of the 1998 RCSB.

3.  The applicant was notified by the Office of Reserve Component
Promotions that his promotion eligibility date to lieutenant colonel was 22
July 1999.  However, there is no military record which shows that he was
serving in an authorized lieutenant colonel position on 22 July 1999.

4.  The Fifth U.S. Army Headquarters Deputy Chief of Staff for Training TDA
shows the applicant was serving in an authorized lieutenant colonel
position on 1  October 1999, the effective date of the TDA.  Therefore, the
applicant should have been promoted and federally recognized as a
lieutenant colonel effective 1 October 1999.

5.  Based on the foregoing, the applicant is entitled to have his date of
rank to lieutenant colonel adjusted to show the effective date of 1 October
1999.  The applicant is also entitled to have his permanent Federal
Recognition orders for promotion to lieutenant colonel amended to show the
effective date of his promotion as 1 October 1999.

6.  The applicant contends that Part Ic (RANK) of his OERs subsequent to
22 July 1999 should be corrected to show his rank was lieutenant colonel
instead of major at that time.

7.  There is no evidence that the applicant was promoted to lieutenant
colonel or served in the rank of lieutenant colonel during the period from
22 July 1999 until he was promoted to lieutenant colonel on 17 June 2004.
Therefore, the OERs in question are correct as currently constituted and
there is no basis to change the rank and/or date of rank on those OERs.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__ld____  __pm ___  __mkp___  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:

      a.  by showing that the applicant was promoted to lieutenant colonel
effective 1 October 1999; and


      b.  by amending Federal Recognition Order Number 158 AR to show that
he was extended permanent Federal Recognition as a lieutenant colonel
effective 1 October 1999.


2.  That, upon completion of the corrections in paragraph 1 a and b, above,
the Defense Finance and Accounting Service audit the military pay account
of the individual concerned to determine monies due to him, if any, and to
pay to him any amount owed, if any, as a result of these corrections.

3.  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 as requests
correction of his promotion date to 22 July 1999 and correction of his OERs
for the period 27 June 1999 through 24 March 2004 to show he was serving as
a lieutenant colonel.



                                  ___Margaret K. Patterson___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040005904                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/21                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  315  |131.0500/DOR                            |
|2.  276                 |125.0200/Fed Rec                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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