RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          20 December 2005
      DOCKET NUMBER:  AR20050001935


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 his date of rank to lieutenant colonel
(LTC) be corrected to 29 March 2000 and that he be considered by a Standby
Advisory Board (STAB) for promotion to colonel.

2.  The applicant states the maximum time in grade is seven years.
However, a material error in his LTC promotion packet resulted in him not
being considered by the 1999 LTC promotion board.  Once the error was
discovered, he was considered and selected for promotion by a STAB.
However, after his selection for promotion, he could not be promoted until
he was assigned to a LTC position.  This delayed his promotion until 1
October 2001.

3.  The applicant provides a copy of orders showing that he was selected
for promotion to LTC effective 29 March 2000.  He also submits a copy of
orders showing that he was actually promoted to LTC effective 1 October
2001.

CONSIDERATION OF EVIDENCE:

1.  In the processing of this case, an advisory opinion was obtained from
the Human Resources Command (HRC), St. Louis, Missouri.  The HRC stated
that the applicant was not considered for promotion by the 1999 LTC
selection board.  Based on that omission, the applicant was considered and
selected for LTC by the October 2000 DA Special Selection Board with a
promotion eligibility date of 30 August 2000.  However, Army regulations
specify that an Active Guard and Reserve (AGR) officer cannot be promoted
until that officer occupies a position calling for the higher grade.  The
applicant was not assigned to a higher graded position until 1 October
2001.  As such, that date was his earliest possible date of rank to LTC.

2.  The applicant was provided a copy of this advisory opinion and
submitted a rebuttal.  In that rebuttal he states that the regulation which
governs the promotion of AGR officers states that the design of the
regulation is to protect officers by allowing them to remain in a
promotable status until such time as higher graded positions become
available.

3.  The applicant continues that his record waited a year to be seen by the
STAB.  This delayed his selection to LTC by a year.  He then had an
additional two months delay while he was awaiting assignment to a higher
graded position.  The applicant states that three months prior to the date
the LTC promotion board was to convene he discovered that his promotion
packet was not scheduled to be considered.  He then notified his personnel
manager and the promotion board.  He was provided a copy of his Official
Military Personnel File microfiche and returned the microfiche after he had
verified the accuracy of the records contained on that file.  However, he
did not follow up to assure that his promotion packet was in fact scheduled
to be reviewed by the 1999 promotion board.  He believes that he has been
placed at a disadvantage by the delay in his promotion.  The applicant
again points out the maximum time in grade for promotion to LTC is seven
years.

4.  Army Regulation 135-18 and National Guard Regulation 600-5 govern
implementation of the AGR program.  Essentially, the program provides for
selected Army Reserve (USAR) and Army National Guard personnel to be
voluntarily called to active duty for special projects, programs or mission
essential tasks.  Periods of active duty may vary from 1 to 3 years, with
provisions for voluntary extension of the period of active duty beyond the
initial call.

5.  Army Regulation 140-30, paragraph 7-1, states that officers in the AGR
program may be selected for promotion regardless of his or her current
position but will not be promoted until the officer is assigned to a
position requiring the higher grade.

6.  Army Regulation 135-155, Table 2-1, specifies that officers in the
grade of major will be considered for promotion to LTC when they have
maximum of 7 years time in grade as a major.  Paragraph 4-19 of this
regulation, effective date, states that USAR unit officers who are selected
for promotion by a mandatory board will be promoted on their promotion
eligibility date provided they are assigned to a position vacancy in the
higher grade.  If not assigned to a position in the higher grade, the
officer may opt to transfer to a non-unit status (USAR Control Group) to
accept the promotion.  Section IV of this regulation provides for officers
to decline promotions for a period of time to retain unit membership if
they are not assigned to a position of the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  Initially, Army Regulation 135-155 does state that seven years is the
maximum time in grade for a major to be promoted to LTC if the officer is
selected for promotion.  However, this is misleading.  This is assuming
that the officer is otherwise eligible for promotion, which includes
occupying a higher graded position.

2.  By the applicant’s own admission, he did not follow up to insure his
promotion packet was going to be considered by the promotion board even
though he was aware that there was problems with his promotion packet.

3.  While the Army opted to give the applicant a STAB, his selection for
promotion by the STAB did not invalidate other Army regulations which
provide for the promotion of AGR officers.  The Army regulation of
significance in this case is the regulation which requires AGR officers who
are selected for promotion to occupy the higher graded position prior to
being promoted.

4.  The applicant was assigned to a higher graded position on 1 October
2001.  As such, he was properly promoted to LTC on that date.

5.  While it is unfortunate that the applicant’s promotion was delayed,
this was based on the same regulation that applies to every other AGR
officer.  Every AGR officer is required to occupy the higher graded
position prior to be promoted to the rank to which selected.  To grant the
applicant’s request would be to give him a benefit not given to the other
AGR officers

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jch___  ___reb__  ____jrm__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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                 |AR20050001935                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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