RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 May 2004
      DOCKET NUMBER:   AR200410037


      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. Victoria A. Donaldson        |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. Yolanda Maldonado             |     |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, in effect, that his date of rank (DOR) to
lieutenant colonel and his Federal Recognition be corrected to show the
effective date 22 February 2000.

2.  The applicant states, in effect, that promotion orders and Federal
Recognition orders should have been immediately published when the results
of the 1999 Department of the Army Reserve Components Selection Board
(RCSB) for promotion to lieutenant colonel were released.

3.  The applicant continues that he was assigned to a position authorized
to be filled by a lieutenant colonel.

4.  The applicant provides an extract from a National Guard Bureau (NGB)
Table of Distribution and Allowances (TDA), a copy of the position
description for paragraph 500c Line 01 of that TDA, a copy of his
notification of selection by the RCSB, Tennessee Army National Guard
(TNARNG) Orders 181-150, a NGB notice of promotion as a Reserve
Commissioned Officer of the Army, Department of the Army Federal
recognition Orders Number 167 AR, and a one-page self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed a second
lieutenant in the United States Army Reserve on 8 May 1981.  The applicant
was promoted to first lieutenant on 26 May 1984 and served in that grade
until he was transferred to the TNARNG on 20 September 1984.  The applicant
was promoted to captain on 26 June 1986 and was promoted to major on 23
February 1993.  He is currently serving as lieutenant colonel in a Title 10
Active Guard Reserve position for the TNARNG.

2.  The applicant's records were considered by the 1999 RCSB for promotion
to the rank of lieutenant colonel.  The convening date of that board was
8 September 1999 and the adjourning date of that board was 8 October 1999.


3.  On 1 December 1999, the applicant was assigned to an authorized
lieutenant colonel position by NGB Orders 152-3, dated 31 May 2000.

4.  The President approved the results of the 1999 RCSB major to lieutenant
colonel board on 3 January 2000 and those results were released on 14
January 2000.

5.  By memorandum dated 9 May 2000, the applicant was notified by the U.S.
Army Human Resources Command-St. Louis that he was recommended for
promotion to lieutenant colonel.  The memorandum further stated that the
applicant's effective date of promotion would be either: "a.  Date after A
above" which shows the entry "A-20000222" [22 February 2000] or "b. Date
Federal Recognition is extended in the higher grade; or c.  Date following
the date Federal Recognition is terminated in current Reserve Date."

6.  TNARNG Orders Number 181-150, dated 30 June 2003, promoted the
applicant to lieutenant colonel effective 30 June 2003.

7.  Records contain a NGB memorandum dated 1 July 2003 which stated that
the applicant was promoted to lieutenant colonel in the Reserve of the Army
for service in the Army National Guard of the United States.  That
memorandum further showed that the effective date of the applicant's
promotion to lieutenant colonel was 22 February 2000 and that the effective
date of his promotion was 1 July 2003.

8.  Department of the Army Federal Recognition Orders Number 167 AR, dated
1 July 2003, shows that the applicant was awarded permanent Federal
Recognition in the grade of lieutenant colonel with an effective date of 1
July 2003.  These orders also show that the applicant has a promotion
eligibility date of 22 February 2000.

9.  Records show that applicant's promotion eligibility date for lieutenant
based on 7 years time in grade as a major is 22 February 2000.

10.  Army Regulation 135-155 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.

11.  Title 10, United States Code, Section 14304 provides the legal
authority for eligibility for consideration for promotion based on maximum
years of service in grade provisions of the law.  Subsection (a) states, in
pertinent part, that officers shall be placed in the promotion zone and
shall be considered for promotion to the next higher grade by a promotion
board convened under section 14101(a) of this title, far enough in advance
of completing the maximum years of service in grade 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
table in subsection (a) establishes the maximum years of service in grade
for a captain to be promoted to major as seven years and for a major to be
promoted to lieutenant colonel as seven years.

12.  Title 10, United States Code, Section 12203 (a) states:  “Appointments
of reserve officers in commissioned grades of lieutenant colonel and
commander or below, except commissioned warrant officer, shall be made by
the President alone.”  Subsequently, in a 22 April 1997 legal opinion on
effective dates of promotion for reserve officers under the Reserve
Officers Personnel Management Act, the Chief of the Military Personnel Law
Branch, Office of the Judge Advocate General, opined that the effective
date of promotion of reserve component officers may not predate the
approval of the promotion board results by the President.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was eligible for promotion to lieutenant
colonel at the time the results of 1999 RCSB were released.  He further
contends that he should have been granted permanent Federal Recognition
with an effective date of 22 February 2000.

2.  Orders show that the applicant was serving in a lieutenant colonel
position on 1 December 1999.

3.  Records show that the applicant was recommended for promotion by the
1999 RCSB for promotion to lieutenant colonel.

4.  Records show that on 3 January 2000, the President approved the results
of the 1999 RCSB which considered officers for promotion to the rank of
lieutenant colonel.

5.  The applicant's promotion eligibility date to lieutenant colonel is 22
February 2000, therefore, the earliest date that the applicant could be
promoted is 22 February 2000.

6.  Records show that, at the time, the results of the board were approved
by the President, the applicant was, already assigned in an authorized
lieutenant colonel position.

7.  Therefore, based on all of the above, the applicant is entitled to have
his date of rank to lieutenant colonel adjusted to show the effective date
22 February 2000.

8.  Based on the adjustment of the applicant's date of rank, he is also
entitled to have his permanent Federal Recognition date corrected to show
the effective 22 February.

BOARD VOTE:

_FNE___  _YM____  _RLD____  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:

      1.  showing that the applicant was promoted to lieutenant colonel with
an effective date of 22 February 2000;


      2. amending Federal Recognition Order Number 167 AR to show that he
was extended permanent Federal Recognition effective 22 February 2000;


      3.  and that he be paid all pay and allowances due him based on his
corrected date of rank to lieutenant colonel.





                  _Fred N. Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104037                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/05/11                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |