RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 October 2005
      DOCKET NUMBER:  AR20050000063


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann Jr.         |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 reconsideration of his date of rank (DOR) for
major from 14 March 2002 to 26 April 1999 according to the Revised
Mandatory Promotion Zones Memorandum, dated 20 September 1999.

2.  The applicant states that his DOR for captain was 28 April 1982.  He
was passed over for major by the 1999 Reserve Components Selection Board
(RCSB).  He reached his maximum time in grade (TIG) of 7 years on 28 April
1999 and was selected for major by the next RCSB which convened on 7 March
2000.  He was incorrectly told by the promotions branch that he had been
passed over.  He later discovered that he had been selected in late January
2002 and was mobilized as a major in October 2002.

3.  The applicant provides a copy of the Revised Mandatory Promotion Zone
Memorandum, dated 20 September 1999.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2002073084, on 21 November 2002.

2.  The Board concluded that the applicant was not entitled to adjustment
to his date of rank for major to 26 April 1999.  He had not shown error,
injustice, or inequity for the relief he had requested.

3.  The applicant was appointed in the Reserve from the Reserve Officers
Training Corps as a second lieutenant effective 28 April 1986.  He entered
on active duty effective 4 October 1986 and was promoted to first
lieutenant effective 4 April 1988.

4.  He was separated from active duty effective 20 March 1992 and
transferred to the USAR Control Group (Reinforcement).

5.  He was promoted to captain effective 5 May 1993 with a date of rank of
27 April 1992.



6.  The applicant was appointed in the Georgia Army National Guard
effective   31 August 1994.  He was honorably separated effective 10
February 1997 and transferred to the USAR Control Group (Reinforcement).

7.  He was considered and not selected for promotion to major by the 1999
Reserve Components Selection Board (RCSB), which recessed on 2 April 1999.

8.  He was considered and selected for promotion to major by the 2000 RCSB,
which recessed on 6 April 2000.

9.  He was issued a Notification of Promotion Status Memorandum dated
14 January 2000 showing his promotion effective date and date of rank for
major as 26 April 1999.  He was also advised that he must be medically
qualified for retention and otherwise meet the promotion eligibility
criteria set forth in Army Regulation (AR) 135-155.

10.  He received an updated medical examination effective 14 March 2002.

11.  He was issued a Promotion Memorandum dated 26 April 2002 showing his
promotion effective date and date of rank for major as 14 March 2002.

12.  In the processing of this case an advisory opinion was provided by the

Chief, Special Actions Branch, Office of Promotions, Reserve Components,
   U. S. Army Human Resources Command (AHRC)-St. Louis (formerly known as
U.S. Army Total Army Personnel Command [AR-PERSCOM]), dated 22 February
2005.  AHRC stated that the applicant had applied to this Board concerning
his promotion status.  His first request was in 2002, requesting the same
correction.  AHRC disapproved his request for a DOR change on 12 September
2002.  The applicant was selected for promotion to major by the 2000 RCSB
with a promotion eligibility date (PED) of 26 April 1999.

13.  The opinion also stated that the applicant was subsequently promoted
to major on 26 April 2002, with a DOR of 14 March 2002, in accordance with
Army Regulation 135-155.  The regulation stated that an officer recommended
for promotion would not be promoted prior to meeting the promotion
requirements, which included having a medical examination that was within a
5-year window of his PED.  The applicant's previous medical examination of
1 April 1994, was not within the 5-year window of his PED of 26 April 1999;
therefore, he was not eligible for that date as his DOR.  Based on the fact
that the applicant did not receive an updated medical examination until
14 March 2002, this was the earliest DOR he was eligible for.  In view of
the facts presented, it was recommended that the applicant's request be
denied.

14.  The applicant was provided a copy of this opinion for possible
rebuttal or comment prior to consideration of his case.

15.  In his rebuttal, the applicant stated that the advisory opinion from
AHRC was factual as far as it goes, but left out several important points
germane to the case.  AHRC was and had been fully aware of these points.
He described the events in detail that led to his promotion to major with a
DOR of 14 March 2002.  He also described the two courses of action AHRC
said were available to him.  He later heard that the results of the 2000
Major Army Promotion List (APL) had been released.  He called AHRC and was
informed that he was passed over.  He never received communication from
anyone in any form that he had been selected.  However, a two time passover
ends your career.  He thought that he was out of the Army and continued
with his civilian endeavors.

16.  After the September 11, 2001 attack, he immediately called the
Pentagon and volunteered to return to active duty.  He searched the
Internet and discovered that he had been selected for major by the 2000
Major APL Board.  He called AHRC to ask what happened and ran into a great
deal of resistance in obtaining information.  It took several phone calls
to obtain the information he needed and an explanation of why he had not
been promoted and specific information on what he needed to do to get
promoted.  He was informed that his physical was outdated and that he had
passed the 5-year window only 25 days prior to his PED.

17.  After discovering the problem, it was later arranged for him to take a
physical by a civilian contract physician.  AHRC never received his
physical and he was later required to take another physical.  He retrieved
a copy of the second physical which was finally received at AHRC and orders
were finally published promoting him to major.

18.  The applicant states that AHRC's citation of the regulation was
accurate.  The physical requirements were clear and the Army did not want
to promote medically unqualified Soldiers.  However, using this regulation
for justification for not correcting a critical mistake made by AHRC which
resulted in a 3-year delay in a deserved promotion was outside the rational
principles upon which the regulation was based.  Officers who are
demonstrably physically unqualified for promotion outside the physical
height and weight standards per Army Regulations 600-9 are given a maximum
delay of only 6 months.




19.  He states that it was never demonstrated that he was ever medically
unqualified for promotion, and the idea that this remedy would not apply to
an administrative requirement was not consistent with the spirit of the
regulation.  The time delay in obtaining a physical was due to entirely
incorrect information provided to him by AHRC.  He was never informed in
writing that a mistake had been made, nor was any attempt made to contact
him by any other means.  AHRC led him to believe that he was released from
AD and there was no logical reason to have another physical.

20.  In summary, he disagreed with his DOR because:  he was misinformed by
AHRC that he had been passed over for promotion to major a second time; he
was never notified in writing of his selection; he was led to believe that
he was discharged, so there was no other logical reason to obtain a
physical.  He was a civilian on a company health plan, in good health, and
under the care of a civilian doctor.  He now requests respectfully that his
DOR of 26 April 1999 be restored to him.

21.  On 14 January 2000 (sic) the applicant was notified that he had been
selected for promotion to major by the Army Reserve Components Selection
Board that had convened on 7 March 2000.  This notification was
sent/addressed to the same address that his promotion orders were sent to
on 26 April 2002.

22.  The Reserve Officer Personnel Management Act (ROPMA), a public law
enacted by Congress on 5 October 1994, prescribes the policies and
procedures to consolidate and modernize the laws that govern the management
of Reserve component officers.  The law was implemented on 1 October 1996. 
ROPMA provides that in order to be eligible for promotion to major, the
maximum time in grade (MTIG) for a captain is 7 years, and that an officer
selected for the first time for promotion to the next higher grade may be
promoted on or before the date that he/she completes the maximum service. 
ROPMA further specifies that the AGR officers must be serving in the Ready
Reserve by the board convening date and serving in a position requiring the
higher grade.  Promotion cannot be effective prior to approval of
respective boards by the President.

23.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  This regulation specifies that an officer
selected by a mandatory promotion board that has a MTIG date before the
approval date of the board, will have a promotion date and effective date
no earlier than the date of approval of the mandatory board by which
recommended.  In no case, will the date of rank or effective date of
promotion be earlier than the date the board is approved.

24.  The same regulation specifies that an officer recommended for
promotion will not be promoted prior to meeting the promotion eligibility
criteria, i.e., having an updated medical examination within five years of
his maximum time in grade date.  Ready Reserve officers are required to
undergo a medical examination at least once every 5 years.  Promotion
authorities will ensure that the officer
possesses a current physical examination before announcing a promotion.  An
officer is promoted after selection if qualifications for promotion are
met.  When an officer does not meet the qualifications for promotion, the
promotion effective date and DOR will not be earlier than the later date
all qualifications are met.

25.  The same regulation states that a promotion will not be delayed unless
the officer is given written notice of the grounds for delay before the
intended date of promotion or as soon as possible thereafter.  If promotion
is delayed, the officer must be given an opportunity to make a written
statement to the Secretary of the Army (SA) for their consideration.
Automatic delays under this provision will be resolved with 6 months of the
date the officer would have been promoted.  An officer's promotion will not
be delayed more than 6 months unless the SA, or the Secretary's designee,
grants a further delay.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's contentions have been noted; however, in accordance
with pertinent regulations, an officer recommended for promotion will not
be promoted prior to meeting the promotion requirements of having a medical
examination that is within 5 years of their PED.  The applicant's previous
medical examination of 1 April 1994, was not within the 5 year window of
his PED of 26 April 1999.  Based on the fact that he did not receive an
updated physical until 4 March 2002, this was the earliest date of rank he
was eligible for.

3.  It was noted that the applicant's Notification of Promotion Status
Memorandum, and the Reserve Promotion orders to major dated 14 January 2000
and 26 April 2002, respectively, had the same address. Therefore, this
evidence clearly shows that he was notified in writing of his selection for
promotion to major by the board that convened on 7 March 2000.




4.  The applicant stated that he had called AHRC and was informed that he
was passed over for promotion; however, he has provided no evidence, and
there is none in the available records, to corroborate his statement that
such a call was made.

5.  The applicant, in his rebuttal, indicated that he became aware of his
promotion selection when he searched the Internet.  He called AHRC to
inquire what happened and ran into what he terms, a great deal of
resistance in obtaining information.  The evidence shows that the
information he sought was obtained and he was subsequently promoted on the
earliest date possible according to regulation.

6.  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

________  ________  ________  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 to amend the decision of
the ABCMR set forth in Docket Number AR2002073084, dated 21 November 2002.




                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000063                           |
|SUFFIX                  |                                        |
|RECON                   |AR2002073084/21 Nov 02                  |
|DATE BOARDED            |20051013                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD  USAR                          |
|DISCHARGE AUTHORITY     |AR . . .USAR . .                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |102                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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