`

                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       19 October 2004
      DOCKET NUMBER:   AR2004103311


      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. Michael J. Fowler             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 her date of rank to captain be changed from

4 March 2003 to 6 April 2001.

2.  The applicant states, in effect, that she was selected for promotion to
captain by the Fiscal Year 2000 Army Competitive Category Captain Promotion
Selection Board (FY 2000 Captain ACC Promotion Selection Board) before she
left active duty Army to join the Indiana Army National Guard (INARNG).
The applicant further states, that based on her selection for promotion by
the ACC Promotion Selection Board, there was no requirement for her to go
before a state Federal Recognition Board for promotion to captain.

3.  The applicant provides a Department of the Army, memorandum, dated
31 May 2000; an INARNG letter of recommendation for promotion; a DA Form
3349 (Physical Profile), dated 23 April 2001; a letter to a United States
Senator, dated 1 July 2002; a letter of timeline of events, dated 15
November 2003; a copy of National Guard Bureau Federal Recognition Orders
Number 55 AR, dated 4 March 2003; and two email messages.

CONSIDERATION OF EVIDENCE:

1.  On 9 May 1997, the applicant accepted appointment as a second
lieutenant/pay grade O-1 and executed an Oath of Office in the U.S. Army
Reserve.

2.  On 11 September 1997, the applicant entered active duty and was
stationed at Fort Bliss, Texas.

3.  Records show that on, 11 March 1999, the applicant was promoted to the
grade of first lieutenant/pay grade O-2.

4.  On 31 May 2000, by memorandum, The U.S. Total Army Personnel Command
(PERSCOM) released the Fiscal Year 2000 Promotion List for Captain in the
Army Competitive Category.

5.  This memorandum shows that the promotion board convened on 7 March 2000
and adjourned on 17 March 2000.

6.  This memorandum contained an enclosure which showed those individuals
that were recommended for promotion to captain and the applicant's name was
among those recommended for promotion to the grade of captain.

7.  Records show that the applicant was honorably released from active duty
on
10 September 2000 and transferred to the U.S. Army Reserve (USAR).

8.  United States Army Reserve Personnel Command Orders C-11-032425, dated
16 November 2000, show the applicant was  released from the USAR Control
Group and assigned to the INARNG, effective 4 October 2000.

9. There is no evidence in the available records that show the applicant
was promoted to captain prior to her separation from active duty.

10.  Military Department of Indiana, INARNG Orders 291-004, dated 17
October 2000, appointed the applicant as a first lieutenant in the INARNG
effective 4 October 2000.

11.  On 4 October 2000, the applicant executed an Oath of Office as a first
lieutenant in the INARNG and was granted permanent Federal Recognition.

12  The applicant's service personnel records contain a memorandum, dated
31 January 2001, from Headquarters, Aviation Brigade, INARNG, to the
Commander of the 38th Infantry Division, INARNG.  This memorandum shows
that the applicant was qualified for promotion to captain and that the
commander recommended her for promotion to the rank of captain in the
INARNG.

13.  There are no documents in the applicant’s service personnel records
that show she was on the Reserve Active Status List (RASL) for one year
prior to selection for promotion to captain as a Reserve Commissioned
Officer.  There is no evidence in the applicant's records that show she was
considered by a reserve component selection board for promotion to the
grade of captain.

14.  Military Department of Indiana, Indiana National Guard Orders 247-014,
dated 4 September 2001, show that the applicant was released from the
INARNG and transferred her to the USAR Control Group effective 5 September
2001.

15.  United States Total Army Personnel Command-St. Louis Orders
A-08-005109, dated 1 August 2001, assigned the applicant to on extended
active duty (EAD) position for one year effective 15 August 2001.

16. U.S. Total Army Personnel Command-St. Louis Orders A-08-005109A01,
dated 15 August 2001, amends Orders A-08-005109 by changing the effective
date to read 6 September 2001.

17.  There is no evidence that shows the applicant was promoted to captain
while serving in the EAD position.

18  On 14 November 2001, the applicant sent an email message to a
lieutenant colonel in the Lieutenant Assignment Branch at PERSCOM.  This
message shows that the applicant requested assistance from the assignment
branch with her promotion to the rank of captain.  The applicant stated, in
effect, that she was selected for promotion to captain by the FY 2000
Captain ACC Promotion Selection Board prior to transferring to the INARNG.

19.  The applicant continued that the unit commander of Headquarters and
Headquarters Company of the Aviation Brigade of the INARNG approved her
promotion packet and submitted it to the State Headquarters.  The applicant
further stated that her unit informed her that she was "approved for
promotion by the state, but that she entered active duty before she got her
Federal Recognition."

20.  The applicant contends in this email that she is no longer in the
INARNG.  She concluded that she is currently serving in an active duty
position and that her current commander is "having problem getting her
promoted to captain."

21.  On 15 November 2001, the assignment officer at PERSCOM replied to the
applicant's email.  The lieutenant colonel stated in his message "When you
left active duty prior to being promoted to captain, you gave up your spot
on the promotion list -- so to speak."

22.  The lieutenant colonel continued that he had checked with the
promotion branch to see if the applicant was eligible for promotion to
captain with the current board in session and "based on the type and length
of tour she was on, even with a waiver, that she would not be eligible for
promotion to captain."

23.  The lieutenant colonel advised the applicant on two courses of action.
 The first was to remain on active duty and request at a minimum a three-
year active duty tour that would make her eligible for the next captain
promotion board.  The second course would be to return to the National
Guard after her one-year active duty tour and be promoted when she became
eligible under their rules.

24. On 3 April 2002, a representative from the National Guard Bureau sent
an email message to the same lieutenant colonel at PERSCOM, requesting
"information (policy, regulatory, etc.)" on the promotion of the applicant
while she was on an EAD one-year non-career tour.


25.  The lieutenant colonel responded to the email by stating that the
applicant is not eligible for consideration for promotion to captain by an
active duty captain's promotion board while on her current one-year
extended active duty tour.  He continued that Army Regulation 600-8-29
(Officer Promotions), paragraph
1-10 promotion eligibility provides "To be considered for promotion by a
selection board, an officer must be on the ADL on the day the board
convenes."

26.  The lieutenant colonel further stated that the applicant is not on the
ADL and that she was placed on the RASL in accordance with the Extended
Active Duty Program.  He stated under the National Defense Act of 2000,
effective 1 October 2000, an officer who is brought on active duty but not
placed on the ADL must be brought on active duty for at least three years
and one day to be eligible for an active duty promotion board.  He
concluded "this makes the applicant ineligible for an active duty promotion
board."

27.  The lieutenant colonel stated that the applicant had a third option.
He concluded that the applicant could get off of active duty when her one
year tour is up and remain in the Reserve instead of the National Guard or
she could request to extend her one year RASL active duty tour another
year, in either case would make the applicant eligible for the next reserve
captain's promotion board.

28.  On 1 July 2002, the applicant addressed a memorandum to a Member of
Congress requesting assistance with her promotion to captain.

29.  The applicant stated "My problem is that I have been waiting to be
promoted to captain, in either an active duty or National Guard capacity
since March 2001." The Army, either active duty or INARNG, has been
unwilling or unable to assist in correcting the situation in my status.  I
apparently fall into some administrative crack where I am neither an active
duty soldier nor a National Guard member."

30.  The applicant's service personnel records contain a letter, dated
10 September 2002, from the Chief of Management Support Division, PERSCOM.
This letter responded to the U. S. Senator from Indiana's inquiry into the
applicant's promotion to captain.

31.  The Chief of Management Support stated "In accordance with statutory
requirements in Title 10, USC, Section 619, and Army Regulation 600-8-29
(Officer Promotions), to be considered for promotion by a selection board,
an officer must be on the ADL the day the board convenes."  He further
stated that, in accordance with Army Regulation 600-8-29, an officer who is
on the ADL and is separated prior to the effective date of promotion cannot
be promoted from the ADL.  Additionally, the Chief of Management Support
stated "a subsequent return to active duty does not warrant return to a
promotable status held prior to release from active duty."

32.  The Chief of Management Support continued "though the applicant was
considered and selected for promotion to captain by a position vacancy
board in the INARNG, she was ordered to active duty prior to filling the
vacancy.  Title 10, USC, Section 14317(d), prohibits an officer from being
promoted while serving such active duty or full-time National Guard duty
unless the officer is ordered to active duty as a member of the unit in
which the vacancy exists when that unit is ordered to active duty."

33.  The Chief of Management Support concluded, in effect, when the
applicant separated from active duty on 10 September 2000, she was no
longer eligible for promotion based on her status on the ADL.
Subsequently, when she was released from the Army National Guard and
ordered to active duty in August 2001, she could not accept promotion to
captain in the National Guard, as she was not eligible.

34.  National Guard Bureau Special Orders Number 274 AR, dated 2 October
2002, show that the applicant transferred from the USAR to the Colorado
Army National Guard (COARNG) effective 16 August 2002.

35.  On 16 August 2002, the applicant executed an Oath of Office as a first
lieutenant in the COARNG and was granted permanent Federal Recognition.

36.  Department of the Army and Air Force, State of Colorado, Department of
Military Affairs Orders 263-091, dated 20 September 2002, show that the
applicant was appointed in the COARNG effective 16 August 2002.

37.  NGB Special Orders Number 55 AR, dated 4 March 2003, show that the
applicant was promoted to the rank of captain in the COARNG effective 4
March 2003.

38.  In a 23 April 2003 letter to the Chief of the National Guard Bureau,
the Chief of the Officers Branch of the COARNG stated that the applicant
was promoted to captain on 4 March 2003 and was identified as a "DA
[Department of the Army] select from active duty." This letter continues
that the applicant transferred to the COARNG from the USAR on 16 August
2002 and that date is the earliest date that the state could have processed
her promotion.

39.  The Chief of the Officers Branch stated "We are not certain as to why
she was not promoted prior to joining the COARNG but the command would have
processed her request earlier if they had known."  The Chief of the
Officers Branch concluded by requesting that her promotion eligibility
date, which is her date of rank, be adjusted to 16 August 2002.

40.  The applicant wrote to the Army Board for Correction of Military
Records (ABCMR) on 15 November 2003.  This memorandum, contains a timeline
of events for the period August 2002 through October 2003, which is prior
to her promotion to captain.  This timeline of events essentially shows the
actions the applicant has taken to implement her promotion to captain based
on the results of the FY 2000 ACC promotion list while she was on active
duty.

41.  On 11 May 2004, staff of the ABCMR requested the Chief of Personnel of
the Army National Guard review the applicant's request and provide an
advisory opinion.

42.  On 21 June 2004, officials at the National Guard Bureau provided a
written advisory opinion regarding the applicant's request.  National Guard
Bureau opined that the applicant did not adequately prove the occurrence of
error or injustice and recommended denial of her application.

43.  On 12 July 2004, the applicant provided a written response to the
National Guard Bureau opinion.  In this response, the applicant stated that
"The staff advisory opinion bases its conclusion on a misunderstanding of
the sequence of events and focusing on an irrelevant issue."

44.  The applicant stated that the correct relevant facts are that she was
on the ADL at the time she was selected for promotion to captain, that she
was ineligible for promotion to captain because of insufficient time in
grade, that she left active duty in September 2000 and joined the INARNG in
October 2000, and that since she was previously selected for promotion a
Federal recognition Board was not required in accordance with paragraph 3-6
of National Guard Regulation 600-100 (Commissioned Officers Federal
Recognition and Related Personnel Actions.)

45.  The applicant continued that she was eligible for a unit vacancy
promotion because she was a Department of the Army select to the grade of
captain and was serving in a captain's position.  The applicant noted that
her unit commander recommended her for unit vacancy promotion to the grade
of captain in January 2001.

46.  The applicant contends that the INARNG erroneously submitted a
promotion packet to a Federal Recognition Board in April 2001 and that the
Federal Recognition Board did not consider her packet until August 2001.

47.  The applicant stated that in August 2001 she returned to active duty
on an extended active duty tour and that based on this she was ineligible
for promotion to captain in the Colorado Army National Guard.

48.  The applicant continued that when her extended active duty tour ended,
she returned to the COARNG.  The applicant stated that she was promoted to
captain in March 2003 and that her date of rank (DOR) was adjusted to show
the effective date 16 August 2002.  She further stated that she was not
provided back pay.

49.  The applicant stated that the staff opinion incorrectly assumes from
the emails provided by officials from the Lieutenant Assignments Air
Defense Branch of PERSCOM that her status was on the Reserve Active Status
List not the Active Duty List during her EAD tour and that this precludes
her from promotion.

50.  The applicant contends that the relevant date is the date of the
promotion board and not the date of the Extended Active Duty tour.

51.  The applicant further contends that at the time of the May 2002
promotion board, she was on the ADL as required by paragraph 1-10a of Army
Regulation 600-8-29 and that her selection for promotion to captain was
proper.

52.  The applicant concluded that her status on the RASL or ADL during her
Extended Active Duty tour is not a relevant issue before the board.

53.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant
Officers Other Than General Officers) prescribes the policies and
procedures for promotion of Reserve officers.  The regulation provides that
mandatory selection boards will be convened each year to consider Army
Reserve Officers in an active status for promotion to captain through
lieutenant colonel.  The regulation also specifies that in order to be
qualified for promotion to captain an individual must have completed four
years in grade as a lieutenant and six years of commissioned service.

54.  Section III (Dates of Promotion) of Army Regulation 135-155 provides
the procedures for computing promotion effective dates of all reserve
component officers.  It states, in pertinent part, that, unless otherwise
entitled by law, antedating of either the effective date of promotion or
the promotion eligibility date will not entitle a reserve component officer
to increased pay and allowances. However, it does establish that the
promotion eligibility date and date of rank is the date the officer meets
the eligibility criteria for promotion to the next higher grade.  Further,
it states that an officer’s promotion eligibility date will become his date
of rank upon promotion and this date will be used to establish the relative
seniority for officer’s holding the same rank.  Finally, it states that
date of rank will be used to establish the officer’s promotion eligibility
date to the next higher grade.

55.  Title 10, United States Code, Section 14301 (Eligibility for
Consideration of Promotion) (a) states: An officer is eligible under this
chapter for consideration for promotion by a promotion board convened under
section 14101 (a) of this title only if the officer is on the reserve
active status list of the Army, Navy, Air Force, or Marine Corps; and
during the one year period ending on the date of the convening of the
promotion boar the officer has continuously performed service on either the
reserve active status list or the active duty list (or on a combination of
both list).

56.  Title 10, United States Code, Section 14308 (Promotions) (c) (2)
states:  “Except as specifically authorized by law, a reserve officer is
not entitled to additional pay or allowances if the effective date of the
officer’s promotion is adjusted to reflect a date earlier than the actual
date of the officer’s promotion.”

57.  National Guard Regulation 600-100 prescribes the policies and
procedures for categories not requiring Federal Recognition Board action
for National Guard officers.  It states, in pertinent part, that, Officers
of the Army Reserve in grades above second lieutenant and below colonel who
are appointed in the next higher grade to fill an authorized position
vacancy in a Federally recognized unit, provided they have been recommended
for promotion to the higher grade by a Reserve selection board convened by
Headquarters Department of the Army and remained in an active status since
being recommended, and further provided that they are appointed in the same
branch as that which selected by the Department of the Army selection
board.

58.  National Guard Regulation 600-100 states in paragraph 8-3 (Promotion
as Reserve Commissioned Officer of the Army) that a commissioned officer
who has been promoted by the State and extended Federal recognition in the
higher grade will be concurrently promoted to the higher grade in the
Reserve of the Army with assignment to the

59.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies
and procedures for promotion of active duty officers.  The regulation
provides that an officer who is on a promotion list and is removed from the
active duty list prior to the effective date of the promotion shall not be
promoted from the ADL promotion list.  A subsequent return to the ADL does
not warrant a return to promotion list status held prior to release from
active duty.

60.  The Guide for Personnel Managers of the Army National Guard, dated
11 September 1996, provides guidance for the implementation of the Reserve
Officer Personnel Management Act (ROPMA).  This guide states, in pertinent
part, that the reserve active status list (RASL) was created by ROPMA and
is a single list of all officers who are active participating members of
the Army National Guard and the Army Reserve, including those officers in
the Individual Ready Reserve.  Officers in an inactive status, such as the
inactive National Guard, are not included on the RASL.  An officer must be
on the RASL in order to be considered for promotion.  Officers who return
to the RASL after being in an inactive status must be on the list at least
one year before they can be promoted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her date of rank to captain should be
changed because she was selected for promotion to captain prior to her
accepting appointment in the INARNG.  She further contends, there was no
requirement for her to go before a state Federal Recognition Board prior to
promotion to the grade of captain in the Army National Guard.

2.  Records show that the applicant was selected for promotion to captain
by the FY 2000 Captain ACC Promotion Selection Board and was awaiting
promotion to captain prior to her separating from the Regular Army to join
the INARNG.

3.  There is no evidence that the applicant was promoted to captain prior
to her separation from active duty.

4.  Based on the applicant's separation from active duty, she was no longer
on the ADL, therefore, she was not eligible for promotion in the INARNG
based on her selection for promotion by the FY 2000 Captain ACC Promotion
Selection Board.

5.  Records show that the applicant's INARNG unit commander, recommended
her for promotion under the provisions of chapter 8 of NGB 600-100.  There
is no evidence that the appropriate promotion authorities approved the unit
commander's recommendation or that the applicant was promoted or awarded
permanent Federal Recognition as a captain in the INARNG based on the unit
commander's recommendation.

6.  Based on the foregoing, there is no compelling evidence in the
applicant's records which shows she was erroneously denied a promotion to
the grade of captain in the INARNG in January 2001.

7.  Records show that the applicant transferred from a Reserve position to
an Extended Active Duty position on 6 September 2001.  There is no evidence
that the applicant was promoted to captain while serving in the active duty
position.

8.  Records show that the applicant transferred from the USAR to the COARNG
on 16 August 2002.  Records show that the applicant was promoted to
captain/pay grade O-3 and was awarded permanent Federal Recognition by the
COARNG effective 4 March 2003.

9.  Based on the applicable regulations and policies, the applicant's date
of rank to captain is correct as currently constituted and the applicant
has failed to meet the burden of proof to justify adjustment to her date of
rank to an earlier date.  Therefore, there is no basis for changing the
date of rank.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JCH __  ___BPI__  __YM ___  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 C. Hise__
                                 CHAIRPERSON





                                    INDEX

|CASE ID                 |AR2004103311                            |
|SUFFIX                  |                                        |
|RECON                   |NO                                      |
|DATE BOARDED            |19 October 2004                         |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Carl S. Chun                        |
|ISSUES         1.       |131.0500.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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