RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            9 August 2005
      DOCKET NUMBER:   AR20040009353


      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:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann             |     |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 his date of rank to captain be adjusted from 28
March 2003 to 1 January 2002.

2.  The applicant states he was selected for promotion to captain while on
active duty and he would have been promoted to captain on 1 January 2002.
Prior to his promotion date he separated from active duty and he entered
the Individual Ready Reserve (IRR).  The IRR never executed his promotion.
On 26 February 2003, he joined a reserve unit where he was promoted on 28
March 2003.  He is now on active duty in an Active Guard Reserve (AGR)
status.

3.  The applicant provides his promotion selection board results; an email
from the U. S. Army Human Resources Command; three DD Forms 214
(Certificate of Release or Discharge from Active Duty); and his unit
assignment orders.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was commissioned
a second lieutenant and entered active duty on 3 June 1998.  He was
promoted to first lieutenant on 3 December 1999.

2.  The applicant was selected for promotion to captain by the Fiscal Year
2001 Captain, Army Competitive Category Selection Board which recessed on
       21 November 2000.  With a promotion sequence number of 3026, he
would have been promoted on 1 January 2002.

3.  On 2 June 2001, the applicant was released from active duty upon the
completion of his required active service and transferred to the IRR.

4.  On 26 February 2003, the applicant was released from the IRR and
assigned to a troop program unit (TPU).  On 28 March 2003, he was
transferred to another TPU within the same command and was apparently
assigned to a captain vacancy and promoted to captain effective that date.
He was ordered to active duty in support of Operation Enduring Freedom on
28 March 2003.  He was released from active duty on 26 March 2004.  He was
ordered to active duty again in an AGR status in April 2004.

5.  In the processing of this case, an advisory opinion was obtained from
the Promotions Branch, Office of Promotions, Reserve Components, U. S. Army
Human Resources Command – St. Louis.  That office recommended denial of the
applicant's request.  It noted he had been selected for promotion to
captain while on active duty but before he was promoted he transferred to
the IRR.  He then transferred to a TPU on 26 February 2002 (sic).  Because
he was in a TPU, he could have been promoted earlier than his time in grade
of five years for captain.  He was placed in the higher-graded position on
28 March 2003 and, therefore, 28 March 2003 is the earliest date he could
be given.

6.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

7.  Title 10, U. S. Code, section 14317(c) provides that an officer who is
on the active-duty list (ADL) and is on a promotion list and who, before
being promoted is removed from the active-duty list and placed on the
reserve active-status list (RASL) of the same armed force and in the same
competitive category, shall be placed on an appropriate promotion list.

8.  Title 10, U. S. Code, section 14304 states 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 grade of captain is 5 years.

9.  Army Regulation 135-155 (Promotion of Commissioned Offices and Warrant
Officers other than General Officers), paragraph 2-4 states an officer on
the ADL who has been selected for promotion but who has not been promoted
by the time the officer transfers to the RASL in the same competitive
category will be placed on an appropriate Reserve of the Army promotion
list.  The effective date of promotion and date of rank will be the same as
if the officer had been selected to the same grade by a promotion board for
RASL officers.

10.  Army Regulation 135-155, paragraph 4-21 states the effective date and
date of promotion to fill U. S Army Reserve position vacancies will be no
earlier than the approval date of the board, the date of Senate
confirmation (if required), or the date the officer is assigned to the
position, whichever is later.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged the applicant was selected for promotion to captain
while he was on active duty and would have been promoted to captain on 1
January 2002.  However, he was released from active duty and transferred to
the IRR in June 2001.

2.  Once the applicant transferred to the U. S. Army Reserve, he became
subject to Reserve component promotion rules.  Had he remained in the IRR,
the soonest he could have been promoted to captain would have been when he
completed 5 years time in grade as a first lieutenant, i.e., 2 December
2004.  When he transferred to a TPU, he was eligible to be promoted to
captain once he filled a captain vacancy.  It appears he filled a captain
vacancy on 28 March 2003; therefore he was properly promoted to captain
effective 28 March 2003 with a date of rank of 28 March 2003.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__bje___  __klw___  __phm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            __Barbara J. Ellis___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009353                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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