RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2005
      DOCKET NUMBER:  AR20040010085


      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             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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 as a captain (O-3E) be
changed from 8 July 2004 to 1 September 2003.

2.  The applicant states that his promotion packet was delayed because his
chain of command did not complete his officer evaluation reports (OERs) in
a timely manner.  He was told in March 2003 that he would be taking command
of C Battery, 1st Battalion, 102nd Field Artillery (C, 1/102).  This was 6
months prior to his assumption of command and he was still assigned to A
Battery, 1st Battalion, 101st Field Artillery (A, 1/101).  Upon examination
of his promotion package check-list, he learned that there were no OERs for
his 5 years of commissioned service.  His senior rater assured him the OERs
would be completed and forwarded.  It actually took about 15 months to get
this accomplished.  During this time he had to write and rewrite various
support forms because they seemed to simply disappear.  His promotion
packet was finally completed and submitted in the spring of 2004 and he was
promoted to captain with a date of rank of 8 July 2004.  He points out that
he was selected ahead of more senior officers for command of C, 1/102,
which demonstrates that the chain of command's seeming indifference for his
welfare was not because he was a mediocre performer.

3.  The applicant provides a letter of explanation; copies of reassignment
orders, effective 1 September 2003, from executive A, 1/101 to commander C,
1/102; a National Guard Bureau (NGB) 8 July 2004 announcement of Federal
Recognition as a captain; and notice of his address while deployed.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he served in the Regular Army for
7 years and reached the rank of sergeant as a chemical operations
specialist.  He joined the Massachusetts Army National Guard (MAARNG) in an
enlisted status, during which he completed his college education.  He was
appointed an MAARNG second lieutenant in the Field Artillery Branch on 29
June 1998 and Federal recognition was extended.  He completed the Officer
Basic Course and was selected for promotion by a special selection board.
The applicant was promoted to first lieutenant on 16 August 2000 and
received Federal recognition on 25 August 2000.

2.  He served in various positions, including as executive officer, in
Battery A, 1/101 until 1 September 2003 when he was transferred to Battery
C, 1/102, a 155 MM self-propelled howitzer battery, as the unit commander.
At the time this application was submitted the unit was mobilized in Iraq.

3.  The cutoff date of rank for first lieutenants for the 2003 Reserve
Components Selection Board (RCSB) for promotion to captain was 31 July
2000.

4.  The applicant was selected for promotion by a unit vacancy board.  He
was promoted to captain and Federal recognition was extended, effective
8 July 2004.

5.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve Component officers.  This regulation specifies
officers selected by a special selection board (SSB) are eligible for the
same date of rank that they would have received by the original board in
which the error occurred.  The regulation further specifies that the
promotion effective date and date of rank for officers with a promotion
eligibility date prior to the SSB would be the approval date of the
mandatory board criteria by which recommended.  Table 2-1 sets forth the
minimum and maximum time in grade requirements for commissioned officers,
other than commissioned warrant officers and indicates that the minimum
time in grade for promotion to captain is 2 years.  The maximum is 5 years.

6.  Title 10, United States Code, section 14502, e(1), specifies that an
officer who is placed on a promotion list as a result of recommendation by
an SSB shall, as soon as practicable, be appointed to the next higher grade
in accordance with the law and policies which would have been applicable
had he been recommended for promotion by the board which should have
considered him or which did consider him.

7.  National Guard Regulation 600-100 provides the guidance for promotion
of officers.  Chapter 8 provides that the adjutant general (TAG) has
promotion authority over National Guard officers within a state.  The state
TAGs may promote or not promote within the states' guard establishment as
they see fit.  However, because of the requirements for and advantages of
federal recognition, the RCSBs and unit vacancy boards provide the basic
framework for promotion within the Army National Guard.

8.  During the processing of this case an advisory opinion was obtained
from the National Guard Bureau.  The Chief, Personnel Division confirmed
that the applicant met the requirement for promotion, including minimum
time in grade and concluded that his promotion packet should have been
forwarded so that he could be considered for promotion to captain by the
2003 RCSB [approved on 11 March 2004].  The opinion pointed out that the 8
July 2004 date was based upon the date the unit vacancy promotion list was
approved.  It was noted that, although the applicant was not considered due
to no fault of his own, his date of rank could not be changed based on a
unit vacancy assignment except by the ABCMR [there is no SSB system in
place for unit vacancies].  Submission of his record for consideration by
an SSB under the 2003 RCSB criteria was recommended.

DISCUSSION AND CONCLUSIONS:

1.  The cutoff date of rank for the 2003 Reserve Components Selection Board
was 31 July 2000.  The applicant's date of rank as a first lieutenant was
16 August 2000.  He was not eligible for consideration by that board.

2.  The applicant was selected for promotion by a unit vacancy board and
was promoted on the earliest possible date, 8 July 2004, the date the unit
vacancy board results were approved.

3.  Regarding the change in his current date of rank, the foregoing is in
consonance with the advisory opinion from the NGB.  However,
notwithstanding the NGB recommendation that his record be submitted for
consideration by a special selection board under the 2003 RCSB criteria, as
noted in Discussion paragraph 1 above, the applicant was not qualified
because his date of rank as a first lieutenant was after the cutoff date.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEV__  __CVM___  __LMB__  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.




                                  __         James E. Vick________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010085                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |. . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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