RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 September 2004
      DOCKET NUMBER:   AR2004100645


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 adjustment to his date of rank for colonel from
1 December 2003 to 29 May 2003.

2.  The applicant states that he was passed over for promotion to colonel
by his first promotion selection board on 8 July 2002.  He states that he
submitted a reconsideration packet for a special selection board (SSB)
regarding his first board and that he was selected and promoted by the SSB.
 He states that he received a promotion letter dated 16 October 2003 with a
date of rank of 1 December 2003.

3.  The applicant provides in support of his application, a copy of his
notification of nonselection for promotion dated 14 November 2002; a copy
of his notification of selection for promotion dated 16 October 2003; and a
copy of a memorandum from the Chief, Senior Active Guard Reserve Management
Office to the United States Army Human Resources Command, dated
15 September 2003, authorizing his promotion to the next higher grade.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that on 14 October 1976, he enlisted in
the United States Army Reserve (USAR), for 6 years, for the purpose of
attending the Reserve Officer Training Corps.

2.  He accepted an appointment in the Active Guard Reserve (AGR) as a
second lieutenant effective 2 August 1979.  He was promoted to major on 1
July 1991 and to lieutenant colonel on 29 May 1998.

3.  Based on the required 5 years maximum time in grade (MTIG), his MTIG
date for promotion to colonel was 29 May 2003.

4.  The applicant was considered and not selected for promotion to colonel
by the 2002 Reserve Components Selection Board (RCSB) that convened on 8
July 2002 and recessed on 7 August 2002.  The president approved the board
results on 24 October 2002 and the board received Senate confirmation on
19 November 2002.

5.  The applicant was considered and selected for promotion to colonel
under the 2002 criteria by an SSB that convened on 2 April 2003.

6.  On 16 October 2003, the applicant was furnished a Promotion Memorandum
reflecting his selection for promotion to colonel under the 2002 criteria,
by an SSB, with an effective date of 1 December 2003.  In the memorandum he
was advised that his date of rank would be established from the effective
date of his promotion.  The memorandum also reflects that the applicant was
assigned to a position equal to or higher than the rank of colonel on 1
December 2003, in accordance with Title 10 United States Code, Chapter
1405.

7.  The Special Actions Branch, Army Human Resources Command (HRC) –
St. Louis, Missouri, expressed the opinion that the applicant was promoted
to lieutenant colonel on 29 May 1998 and that promotion to colonel requires
5 years time in grade; therefore, his promotion eligibility date was 28 May
2003.  The HRC stated that he was considered for promotion to colonel by
the 2002 Department of the Army Reserve Components Selection Board and not
recommended for promotion; however, it was determine that he had a basis
for consideration by an SSB.  The HRC further stated that he was considered
by SSB 2003SS04R1 and recommended for promotion and that Officer Management
Division verified that he went into the positions requiring the higher
grade on 1 December 2003 with a date of rank of 1 December 2003.  It is the
opinion of the HRC that the applicant’s request be denied.

8.  The advisory opinion was referred to the applicant on 27 February 2004,
for his information and possible rebuttal (copy attached).  In his rebuttal
to the opinion, he states that in accordance with Army Regulation 135-155,
paragraph 4-21, the promotion of an AGR officer who is selected for
promotion by a SSB will be the same as if he had been recommended for
promotion by the mandatory board and that the officer’s date of rank will
be the date he attains the MTIG or the date on which he was assigned to a
higher grade position, whichever is earlier.  The applicant states
paragraph 4-21 of Army Regulation 135-155 was erroneously not considered
and omitted from the advisory opinion and that this paragraph has been
previously cited in advisory opinions when providing an opinion on behalf
of colonels that have requested changes to their dates of rank. In the
rebuttal he contends that his promotion eligibility date was determined to
be 29 May 2003, 5 years after the date that he attained his MTIG (29 May
1998). He concludes his rebuttal by stating that 29 May 2003 is earlier
than 1 December 2003; therefore, his promotion order should be corrected to
reflect his date of rank as 29 May 2003, the earlier date.

9.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  This regulation specifies that AGR officers
selected by a SSB are eligible for the same date of rank that they would
have received by the original board in which the error occurred.  It also
specifies that promotion may only be effective upon positioning in the
higher grade or assignment to the Individual Ready Reserve (IRR).

10.  Army Regulation 135-155 also specifies that an officer is promoted
after selection if all qualifications for promotions are met.  When an
officer does not meet the qualification for promotion, the promotion
effective date and date of rank may be advanced to the date qualifications
are met.

11.  Title 10, United States Code, section 14502, e(2) specifies that
promotion as a result of recommendation of an SSB convened under this
section shall, upon such promotion, have the same date of rank, the same
effective date for the pay and allowances of that grade as the officer
would have had if the officer had been recommended for promotion to that
grade by the mandatory selection board and met all other promotion
requirements, i.e., assigned to a higher graded position.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to a correction to his date of rank for colonel.  He has not shown
error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that his date of rank should be changed to
be 29 May 2003, 5 years after the date that he attained his MTIG is without
merit.  The evidence of record clearly shows that he was considered and not
selected by the 2002 RCSB, which was approved on 24 October 2002.  He was
subsequently selected for promotion by an SSB that convened on 2 April 2003
and his date of rank was determined to be the date that he fulfilled all of
the promotion requirement in accordance with Army Regulation 135-155
(1 December 2003), the date that he was positioned in the higher grade.

3.  Pertinent regulations clearly show that AGR officers selected by a SSB
are eligible for the same date of rank that they would have received by the
original board in which the error occurred provided they are positioned in
the higher grade.  Promotion may only become effective the date of
assignment to the higher graded position or assignment to the IRR.

4.  In order to justify correction of a military record the applicant must
show 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

__mdm___  __kah___  __rld___  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.




                 Mark D. Manning
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003095384                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040914                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000.0000/PROMOTION                 |
|2.  315                 |131.0500.0000/DATE OF RANK              |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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