RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  24 June 2004
      DOCKET NUMBER:  AR2004099959


      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. James Hise                    |     |Chairperson          |
|     |Mr. Stanley Kelley                |     |Member               |
|     |Mr. Hubert Fry                    |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 adjustment to his date of rank (DOR) for
captain.

2.  The applicant states, in effect, that his DOR should be adjusted to a
date that reflects a maximum of 7 combined years service as a lieutenant.

3.  The applicant provides his ARPC Form 155-R (Personnel Qualification
Statement), his completion documents for the officer basic course and
baccalaureate degree, and his deployment orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
California Army National Guard (CAARNG) as a second lieutenant effective
22 August 1992.  He was promoted to first lieutenant effective 21 August
1995.

2.  His ARPC Form 155-R verifies that he was assigned to a captain's
position effective 1 April 1999.

3.  Based on the maximum of 7 combined years of service as a lieutenant,
his maximum years of service in grade (MYIG) for promotion to captain was
20 August 1999.

4.  He was separated from the CAARNG effective 7 October 1999 and
transferred to the United States Army Reserve Control Group
(Reinforcement).

5.  The applicant was considered and selected for promotion to captain by
the 1999 Reserve Components Selection Board (RCSB), which convened on
9 November and recessed on 10 December 1999.  The President approved the
board results on 18 April 2000.  He was issued a Promotion Memorandum dated
17 January 2001, indicating his promotion effective date and date of rank
for captain as 20 August 2000.  Based on his MYIG he should have been
considered by the 1998 RCSB which the President approved on 1 April 1999.
The President should have approved those board results on 21 March 1999.

6.  The applicant's records show that he completed the required military
and civilian education for promotion prior to being promoted to captain and
prior to his eligibility (MYIG) date.  The Promotion Qualification
Statement submitted by the applicant verified the required position
assignment, active status, medical qualification, and security clearance
for promotion purposes.

7.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary
(Manpower and Reserve Affairs) acknowledged that pertinent Army agencies
had agreed that the faulty promotion policy for promotion to captain should
be revised, and that actions would be initiated for this purpose.  He
further stated that affected individuals would be advised they could seek
relief from the Army Board for Correction of Military Records (ABCMR) which
could adjust DOR’s for those who were first-time considered and selected
for promotion to captain, after having served more than 7 combined MYIG as
a lieutenant.

8.  The Reserve Officer Personnel Management Act (ROPMA) prescribed the
policies and procedures to consolidate and modernize the laws governing the
management of Reserve component officers.  ROPMA specified that a second
lieutenants (2LT) serve a MYIG of 2 years before promotion to first
lieutenant (1LT), and a 1LT serve a MYIG of 5 years before promotion to
captain.  The Reserve Officer Personnel Act in effect prior to ROPMA
required completion of 3 years as a 2LT and 4 years as a 1LT before
promotion to captain.

9.  ROPMA further specifies that the officer must be serving in a position
requiring the higher grade or assigned to the Individual Ready Reserve or a
Individual Mobilization Augmentee position.  Promotion policy also requires
completion of the necessary military education (officer basic course) and
civilian education (baccalaureate degree).

10.  The ROPMA promotion boards for captains were administratively delayed.
 The Presidential approvals of the results of the pertinent promotion
boards were also administratively delayed.  Based on normal processing,
they should have been convened earlier and approved approximately 100 days
after the respective recess dates.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
adjustment to his promotion effective date and date of rank for captain to
1 April 1999, the date of his assignment to a captain's position, had he
been timely considered for promotion prior to his MYIG date.  The applicant
was unjustly and unfairly required to serve beyond the required MYIG.

2.  Although the applicant was selected for promotion to captain the first
time he was considered after the enactment of ROPMA, the untimely promotion
consideration and delay of his promotion created an injustice that should
now be corrected.

3.  The applicant is otherwise qualified for promotion to captain with an
adjusted DOR, as determined by his appropriate commander/manager, and has
met all other prerequisites for promotion on 1 April 1999.

4.  The applicant was prevented from equitable promotion consideration,
unlike others in his grade in earlier and later year groups who were
considered before and after him, and was unjustly considered well after his
eligibility.  He was eligible for promotion consideration prior to his MYIG
date so that, if selected, he may have been promoted on or prior to his
MYIG date.  He was unjustly required to serve in grade beyond the 7 years
required by ROPMA and denied timely consideration.  The further delay for
promotion board proceeding preparation and processing for Presidential
approval compounded the unfair circumstances.  It is concluded therefore,
that had he been timely considered for promotion prior to his MYIG date,
and based on his first-time consideration/selection, a reasonable chance
would have resulted that he would have been selected and respectively
promoted on or before his MYIG date, and entitled to an earlier promotion,
DOR, and pay and allowances.

BOARD VOTE:

__jh___  ___sk_____  ___hf_____  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing he was promoted to captain with an adjusted promotion effective
date and date of rank of 1 April 1999, with entitlement to the pay and
allowances in the higher grade on that date.




            ____James Hise__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099959                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040624                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PLUS                              |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.05                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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