RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:
      DOCKET NUMBER:  AR20040006359


      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. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |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, adjustment to her dates of rank for
captain, major, and lieutenant colonel as an exception to policy.  She also
requests retirement in the grade of lieutenant colonel, with entitlement to
all back pay and allowances.

2.  The applicant states that she was improperly counseled in 1993 by
United States Army Recruiting Command (USAREC) personnel that her 4 years
of Active Guard Reserve (AGR) service was the same as 4 years on active
duty service (year for year service credit).  In 1993, she made the
decision to return to active duty based on information provided to her by
USAREC personnel that she would be eligible for promotion to major on time.
 In 1993 her date of rank for captain was changed from 1 February 1986 to
16 August 1990 and she was not promoted on time to major and lieutenant
colonel.  She was not able to complete the 3 years time in grade (TIG)
requirement to be eligible to retire in the grade of lieutenant colonel
after 20 years of active Federal commissioned service.  She also lost out
on several years of active duty pay in the grades of major and lieutenant
colonel, respectively.

3.  The applicant also states that in January 2003, she was advised by the
then Chief, Army Nurse Branch, that her DA Form 5074-1-R (Record of Award
and Entry Grade Credit (Health Services Officers) was missing from her
records.  The form documented inclusive dates on active duty, civilian
degrees, total constructive credit, and prior service credit.  According to
the Chief, Army Nurse Branch, USAREC uses this form to calculate Reserve,
active, and AGR time toward active duty time so that an applicant is fully
aware of their constructive credit prior to applying to come back on active
duty.  The fact that this form was not completed by USAREC could have
contributed to the improper information provided to her by USAREC
personnel.

4.  The applicant further states that an earlier advisory opinion, dated
24 February 2003, states that her date of rank for captain should be re-
established to 1 February 1986.  The opinion also states that the
reestablished date of rank would affect her promotion year groups and
promotion eligibility.  Based upon the shifts in promotion year groups, a
special promotion board should be convened to consider her for promotion to
major and lieutenant colonel.
5.  The applicant provides copies of an affidavit from a US Army Nurse
Counselor; a memorandum of support from a rater, and later her senior
rater; and a copy of the advisory opinion from the Army Reserve Army Nurse
Corps (ANC) Program Manager, dated 24 February 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 August 1993, the date she was placed on the ADL.  The
application submitted in this case is dated 18 August 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 limitations 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 she was appointed in the United
States Army Reserve (USAR), Army Nurse Corps (ANC), as a second lieutenant,
effective 29 May 1982, with no constructive credit.

4.  She was ordered to active duty as an obligated volunteer officer for 3
years effective 17 July 1982.  She was promoted to first lieutenant
effective 17 January 1984 and to captain effective 1 February 1986.

5.  On 20 June 1986, she was selected for appointment in the Regular Army
(RA).

6.  She was appointed in the RA, ANC, as a captain, effective 30 September
1987.  She was released from active duty effective 1 February 1989.  She
was appointed in the USAR, ANC, effective the same day.

7.  She entered on active duty in AGR status for 3 years effective 2 April
1989 and was released from active duty effective 15 August 1993 on the
expiration of her term of service.
8.  She was accessioned onto active duty as an obligated volunteer officer
for 7 years and 6 months effective 16 August 1993.  Her orders stated that
her date of rank would be determined after entry on active duty in
accordance with Army Regulation 624-100, Chapter 6.

9.  The Total Army Personnel Command, Alexandria, Virginia, issued orders,
dated 7 October 1993, announcing adjustment of the applicant's date of rank
for captain to 16 August 1990.

10.  She was promoted to major effective 1 August 1997.

11.  On 21 January 2004, the US Army Human Resources Command, Alexandria,
Virginia, issued orders promoting the applicant to lieutenant colonel with
an effective date and date of rank of 1 February 2004.

12.  She was released from active duty for the purpose of retirement in the
grade of lieutenant colonel effective 30 June 2004.

13.  On 1 September 2002, she applied to the ABCMR for reestablishment of
her date of rank for captain to 1 February 1986 and special selection board
(SSB) consideration for promotion to major and lieutenant colonel.

14.  On 10 December 2002, the Chief, ANC Branch, Total Army Personnel
Command, Alexandria, Virginia, advised the ABCMR that a review of the
applicant's file by that office revealed that the applicant may be entitled
to constructive credit.  The following data were listed for consideration
in computing active duty time:  A)  the applicant was commissioned on
29 May 1982, attended officer basic course from 21 July through 31 August
1982 and was subsequently assigned to Ft. Lee with a report date of 9
September 1982; B) from 1984 through 1987 she was assigned to Ft. Polk as a
staff nurse and completed the officer advanced course from 18 May 1984
through 10 September 1985; C)  in 1987 through 1989 the applicant was
assigned to Ft. Sheridan as the Nurse Counselor; D)  the applicant was
released from active duty on 1 February 1989 and commissioned as a USAR
officer and ordered to active duty, on 23 March 1989, in an AGR status; and
E)  on 15 August 1993 the applicant was separated from AGR status and
accessioned on 16 August 1993 as a USAR officer on active duty.  However,
the applicant's DA Form 5074-1-R was missing.  The opinion recommended that
the applicant's request be forwarded to the USAREC for administrative
action.
15.  In the processing of the applicant's case, an advisory opinion was
provided by the Army Reserve ANC Program Manager, USAREC, dated 24 February
2003, in which he stated that a review of the documentation submitted by
the applicant determined that constructive credit should have been
calculated year for year, which would have affected the applicant's date of
rank and promotion year group. This was determined by USAREC Regulation 135-
101, Table 3-1 and DODI 6000.13 (6/97).  He recommended reestablishment of
the applicant's date of rank for captain to 1 February 1986.  Since the
applicant had been promoted to major he also recommended SSB consideration
for promotion to lieutenant colonel.  This would remedy any disparity and
promote objective and equal access to the promotion process.

16.  The advisory opinion was forwarded to the applicant for
acknowledgement and possible rebuttal on 13 March 2003.  There is no
available documentation to show what action was taken by the applicant.

17.  On 15 January 2004, the Chief, ANC Branch, advised a staff member of
the Board that the applicant questioned the possibility that USAREC should
have awarded constructive credit towards TIG that would have exceeded the 3
years and therefore impacted her ability to compete sooner for promotion
selections.  USAREC raised a concern that the applicant's date of rank was
erroneously based on Army Regulation 600-8-29, Chapter 1, Section V,
Paragraph 1-39(b) and 1-41(c) instead of Paragraph 1-39(a).  The entire
discourse, he added, was included in the applicant's memorandum, the
original of which was forwarded to the ABCMR on 3 September 2002.  The Army
Promotion Branch, Army Human Resources Command, Alexandria, Virginia, non-
concurred with USAREC's interpretation and supported the recommendation of
the ANC Branch that the case go forward to the Board with the present
computations.

18.  On 18 February 2004, the applicant requested withdrawal of her
application. On 19 February 2004, her case was administratively closed.

19.  The applicant submits an affidavit, dated 3 August 2004, in which the
author stated that in June 1993, she was the Army Nurse counselor stationed
in Tampa, Florida.  In spring 1993, she counseled the applicant regarding
an active duty assignment to the US Army Medical Student Detachment to
attend graduate school at the University of Maryland.  This assignment
required a 7 year, 6 month service obligation upon graduation.  The
applicant was actively serving as an ANC officer (USAR Counselor) in the
AGR at the time she counseled the
applicant.  Based on the information available to her at the time, which
she believed to be accurate, she counseled the applicant that her 4 years
of active service in the AGR would count year for year TIG.  In addition,
based on the information available to her at the time, she counseled the
applicant that her date of rank would remain the same.  Based on the
applicant's record and her date of rank for captain of 1 February 1986, she
counseled the applicant that she would be eligible to compete for promotion
to major soon after entering on active duty.  She was never provided
information that would have indicated the applicant's date of rank for
captain would be reestablished from 1 February 1986 to 16 August 1990 based
on her service in the AGR.

20.  The applicant also submits a memorandum of support from a former
rater, and later her senior rate, in which he stated, in effect, that the
applicant entered on active duty with a clear understanding that her date
of rank for captain would be 1 February 1986.  The fact that it was changed
was a disservice to the applicant's career.

21.  Army Regulation 600-8-24, prescribes the policies and procedures for
the transfer and discharge of Army officers.  Paragraph 6-14c(1) specifies
that a RA or USAR commissioned officer with 20 years active Federal service
may request voluntary retirement.  Paragraph 6-22d specifies that when an
officer has an approved retirement pending and is subsequently selected for
promotion, he/she may request to withdraw the application to accept the
promotion.  However, the officer remains subject to worldwide assignment
according to the needs of the Army.

22.  Army Regulation 600-8-24, Paragraph 6-28, unless earlier retired, an
RA lieutenant colonel (not recommended for promotion) will retire the first
day of the month, after the month in which the officer completes 28 years
active commissioned service.

23.  Army Regulation 624-100, prescribes the policies and procedures for
the promotion of commissioned officers on the active duty list (ADL).
Paragraph 6-8 of this regulation specifies that, the grade of other than
Regular Army (OTRA) commissioned officers assigned to an AMEDD Corps, upon
placement on the ADL, will be determined as prescribed in Army Regulation
135-101.  The date of rank will be determined by backdating, from the date
of placement on the ADL, by a period equal to the amount by which the entry
grade credit awarded exceeds the promotion phase point in the promotion
competitive category which
established the entry grade.  If ordered to active duty and placed on the
ADL in their Reserve grade currently held, the date of rank will be
determined by backdating from the effective of placement on the ADL by the
lesser of 3 years or the entry grade credit at the time of his or her most
recent original appointment.

24.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  This regulation specifies that promotion
reconsideration by a SSB may only be based on erroneous non-consideration
or material error, which existed in the record at the time of
consideration.  The regulation also specifies that officers who discover
that material error existed in their file at the time they were non-
selected for promotion may request reconsideration.  Reconsideration will
normally not be granted when an officer could have taken timely corrective
action such as notifying the Office of Promotions of the error and
providing any relevant documentation that he or she had.  To determine if
there is an error in the promotion file, the officer may request, within 2
years of the board recess date, a copy of his or her file, as considered by
the mandatory promotion selection board through the Office of Promotions.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the advisory opinions rendered in this case by the
Chief, ANC Branch and the Army Reserve ANC Program Manager, the applicant
is not entitled to reestablishment of her date of rank for captain to 1
February 1986.  Army regulations show that the date of rank of OTRA
officers assigned to an AMEDD Corps upon placement on the ADL will be
adjusted from the effective date of placement on the ADL by the lesser of 3
years or the entry grade credit at the time of her most recent original
appointment.  The applicant, as an OTRA officer, was placed on the ADL and
assigned to the ANC effective 16 August 1993.  Her date of rank for captain
was properly adjusted by the lesser, 3 years from the effective date of her
placement on the ADL.

2.  Notwithstanding the advisory opinions rendered in this case by the
Chief, ANC Branch and the Army Reserve ANC Program Manager, the applicant
is not entitled to SSB promotion consideration for lieutenant colonel based
on a reestablished date of rank for captain.  Based on the fact the
applicant's date of rank for captain was properly adjusted in accordance
with Army regulations, the applicant was promoted to lieutenant colonel on
her established date of eligibility.  Therefore, she is not entitled to SSB
promotion consideration for lieutenant colonel.

3.  The applicant contends that she was not able to complete the 3 years
TIG for promotion to lieutenant colonel and qualify to receive retired pay
in that grade.  The applicant was selected for promotion to lieutenant
colonel with a promotion effective date and date of rank of 1 February
2004.  She was released from active duty for the purpose of voluntary
retirement effective 30 June 2004.  Army regulation provided for the
withdrawal of an approved pending retirement when an officer is selected
for promotion.  The applicant could have elected to stay on active duty and
she elected not to do so.  The applicant could have elected to remain on
active duty to complete 28 years of service and complete the 3 years TIG as
a lieutenant colonel, and thus would have been eligible to receive retired
pay in that grade.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 August 1993, the date she was
placed on the ADL; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 15 August 1996.
However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LD____  __RB____  ____LF_ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's
failure to timely file this application within the 3-year statute of
limitations prescribed by law.  Therefore, there is insufficient basis to
waive the statute of limitations for timely filing or for correction of the
records of the individual concerned.




                               __Ronald E. Blakely_  _
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006359                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/27                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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