RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 October 2005
      DOCKET NUMBER:   AR20050000336


      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. Lisa O. Guion                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Laverne V. Berry              |     |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, in effect, that his captain (CPT) date of rank
(DOR) be changed to 1 July 1999.

2.  The applicant states, in effect, that he was selected for promotion to
CPT while on active duty; however, the effective date of the promotion was
after his date of release from active duty (REFRAD).  He claims he was
subsequently promoted to CPT on 2 November 2002, while in the Individual
Ready Reserve (IRR).  He states that he was called back to duty in March
2003, and deployed to Iraq.  He was found to be the best candidate of all
the available officers, and selected to command a unit in Baghdad.  He
further claims that since he has been in command, he has approved multiple
6 month waivers for enlisted promotions from pay grade E-4 to E-5, and in
some of those cases, the primary leadership development course (PLDC)
military education requirement was waived.  The applicant also states that
he has reenlisted Soldiers who received substantial bonuses, and this shows
the Army is taking extensive measures to retain Soldiers.  He states that
just about any waiver is available if asked of the right person.  He
believes that given his situation in Iraq, and the Army's attempt to retain
Soldiers, his request for a change in his DOR is fair.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Headquarters III Corps and Fort Hood
Orders Number (#) 134-0218, dated 14 May 1999; US Total Army Personnel
Command (PERSCOM) Orders #162-104, dated 11 June 1999; Separation Document
(DD Form 214); and PERSCOM-St. Louis Memorandum, dated 13 February 2003.

CONSIDERATION OF EVIDENCE:

1. The applicant was appointed a second lieutenant (2LT) in the United
States Army Reserve (USAR), and entered active duty on 14 June 1995.  He
was promoted to first lieutenant (1LT) on 3 June 1996.

2.  On 13 May 1999, the applicant declined voluntary indefinite status, and
requested REFRAD not later than 14 June 1999.

3.  PERSCOM Orders 162-104, dated 11 June 1999, authorized the applicant
promotion to CPT with an effective date of 1 July 1999.

4.  On 14 June 1999, prior to the effective date of his promotion to CPT,
the applicant was honorably REFRAD upon completion of required active
service, and he was transferred to the IRR.  The separation document that
he was issued on the day of his discharge shows he had completed 4 years
active duty service, and that his Reserve obligation expired on 12 May
2003.

5.  PERSCOM-St. Louis Memorandum (TAPC-MSL-N), dated 13 February 2003,
directed the applicant's promotion to CPT, as a Reserve commission officer,
on 1 November 2002.

6.  During the processing of this case, an advisory opinion was obtained
from the Army Human Resources Command (HRC)-St. Louis, Chief, Special
Actions Branch, Office of Promotions, Reserve Component (RC).  This HRC-St.
Louis promotion official stated that the applicant's recommendation for
promotion to CPT while on active duty transferred with him to the IRR, and
that the applicant became eligible for promotion once he completed the 5-
year maximum time in grade requirement on 2 June 2002; however, the
applicant was not qualified for promotion on that date because his physical
examination had expired.  The applicant was promoted to CPT on 1 November
2002, the date he completed the new physical examination.

7.  On 17 June 2005, the applicant responded to the HRC-St. Louis advisory
opinion.  He commented that he understood the regulatory requirements for
promotion, which was his reason for seeking a waiver for promotion to CPT.
He claims the Army is offering many bonuses and incentives to compensate
for its declining population.  He also states that some Soldiers take
extreme measures to avoid their military commitments, while others seek aid
through their Congressional Representatives when they believe things are
not going their way.  He states that he had no intentions on returning to
AD after his transfer to the IRR.  However, he was recalled, involuntarily
transferred to a new unit, and deployed to Iraq, where he assumed command
of a company six months into the deployment.  He claims to have recommitted
himself to completing his military career, and is exploring opportunities
to get back on track with his peers.  He finally states that he has
honorably served his country and has made no attempt to get out of his
responsibilities.  Therefore, given the military's effort to consider all
avenues of retaining Soldiers, his request is fair.

8.  Army Regulation 600-8-29 prescribes policy and procedures for the
promotion of Regular Army Officers.  An officer who is on a promotion list
and is removed from the active duty list prior to the effective date of
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.
9.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve Officers.  Table 2-1 shows that the maximum time in
grade requirement for promotion to CPT is 5 years.  The regulation also
stipulates that in order to be promoted, a Reserve officer must have had a
medical examination within 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his CPT DOR was carefully considered.
 However, there is an insufficient evidentiary basis to support granting
the requested relief.

2.  By regulation, an officer who is on a promotion list and is removed
from the active duty list prior to the effective date of promotion shall
not be promoted from the active duty list and a subsequent return to the
active duty list does not warrant a return to promotion list status held
prior to REFRAD.  The evidence of record clearly shows the applicant
elected not to remain on active duty, and as a result his active duty
promotion to CPT was revoked.

3.  The applicant’s promotion list status was transferred with him to the
USAR, and he was selected for promotion after fulfilling the maximum 5-year
time in grade requirement for promotion in the RC on 2 June 2002.  However,
he was not promoted until 1 November 2002, when he satisfied the medical
examination requirement for promotion.  The applicant’s promotion to CPT
was accomplished in accordance with the governing law and regulation.  As a
result, there is no error or injustice related to his CPT DOR, and
therefore, there is an insufficient evidentiary basis to support granting
the requested relief.

4.  The applicant’s service and accomplishments in Iraq are noted, and he
is to be congratulated for this service.  However, this factor does not
provide a basis to grant him a waiver, or special consideration for
promotion outside of the defined regulatory requirements, which would be
unfair to all officers who faced similar circumstances.

5.  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 request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___CG __  ___RTD _  ___LVB_  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.




            ____Curtis Greenway____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000336                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/10/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1999/06/13                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Completion of Required Service          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]