RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      26 October 2005
      DOCKET NUMBER:  AR20050002788


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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, correction of his promotion
effective date and date of rank for major from 29 August 2001 to 30 April
1997.

2.  The applicant states that he was in a major's slot and should have been
considered for promotion while in the Individual Ready Reserve (IRR) with
an effective date of 30 April 1997.  He returned to the Reserve into a
major's position/slot and was mobilized for 2 years and served in that
position.  He should have been eligible for promotion to lieutenant colonel
2 years ago.  That would have brought him in line with his peers/year
group.  His previous and current positions were/are major's slots.

3.  The applicant provides copies of a 1997 Reserve Selection Board Results
memorandum, his promotion memorandum for major, and his unit's manning
report.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 29 August 2001, the date of his promotion to major.  The
application submitted in this case is dated 7 February 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he was appointed in the United
States Army Reserve (USAR) as a second lieutenant effective 30 August 1985.
 He entered on active duty effective 31 October 1985.

4.  He was promoted to first lieutenant effective 30 April 1987 and to
captain effective 1 May 1990.

5.  He was released from active duty effective 1 March 1995 and was
transferred to the IRR.

6.  Based on the required completion of 7 years maximum time in grade
(MTIG), his MTIG date for major was 30 April 1997.
7.  He was considered and selected for promotion to major by the 1997
Reserve Components Selection Board (RCSB) that convened on 11 March and
recessed on 11 April 1997.  The President approved the board results on 27
August 1997.

8.  He was reassigned from the IRR to a troop program unit (TPU) effective
27 July 2001.

9.  On 28 August 2001, the Chief, Office of Promotions, Reserve Components,
Human Resources Command (HRC) St. Louis, Missouri, notified the US Army
Reserve Personnel Command (AR-PERSCOM), St. Louis, of the applicant's
selection for promotion to major by the 1997 RCSB.

10.  Documentation submitted by the applicant shows he was assigned to a
major's position effective 29 August 2001.

11.  He was issued a promotion memorandum dated 18 September 2001 showing
his promotion effective date and date of rank to major was 29 August 2001.

12.  In an advisory opinion, dated 28 February 2005, the Chief, Special
Actions Branch, Office of Promotions, Reserve Components, HRC – St. Louis,
stated that while assigned to the USAR Control Group (IRR) the applicant
was selected for promotion to major by the 1997 RCSB with a promotion
eligibility date (PED) of 30 April 1997.  He was subsequently promoted by
the US AR-PERSCOM upon his assignment to a TPU on orders dated 18 September
2001, with a date of rank of 29 August 2001.  Based on the fact the
applicant was in a control group on his PED and met the promotion
requirements, it was recommended his date of rank be corrected to 30 April
1997 and his PED to lieutenant colonel will be adjusted to 29 April 2004,
and he would be eligible for promotion consideration by a SSB under the
2003 and 2004 criteria.

13.  The advisory opinion was forwarded to the applicant for acknowledgment
and rebuttal on 25 May 2005 and he concurred on 27 May 2005.

14.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve Components officers.  This regulation specifies that
completion of 7 years time is grade is required before promotion to major
and lieutenant colonel.  Officers assigned to a TPU must be serving in a
position
requiring the higher grade or assigned to the IRR or as an Individual
Mobilization Augmentee (IMA).  In addition, IRR and IMA officers selected
by a mandatory promotion board must have completed the MTIG for promotion
to the next higher grade.  If an officer selected by a mandatory promotion
board has a MTIG date that is before the presidential approval date of the
board, the officer's promotion effective date and date of rank will be no
earlier that the date of approval of the mandatory board by which
recommended.

15.  Army Regulation 135-155 also specifies that promotion consideration/
reconsideration by a Special Selection Board (SSB) may only be based on
erroneous non-consideration or material error that existed in the record at
the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
adjustment to his promotion effective date and date of rank for major to
27 August 1997, the presidential approval date of the 1997 RCSB, based on
his first time selection and assignment to IRR at the time, with
entitlement to back pay and allowances.

2.  Notwithstanding the advisory opinion provided in this case, pertinent
regulations show that a non-unit officer selected for the first time for
promotion to the next higher grade may be promoted on completion of the
maximum service.  Promotion effective dates and dates of rank cannot be
effective prior to the presidential approval of the respective board.  When
the applicant was selected by the 1997 RCSB with an earlier MTIG date than
the board approval date, the earliest date he would have been eligible for
would have been 27 August 1997, and not his MTIG date of 30 April 1997.

3.  The applicant’s actions did not contribute to the unreasonable delay
and he should not be penalized by a late promotion.  Had the Office of
Promotions, Reserve Components, been aware of his assignment to the IRR
when the President approved the 1997 RCSB, the applicant would have been
eligible for promotion to major on that date.  Although the applicant was
selected for promotion to major the first time he was considered, the delay
of his promotion created an injustice that should now be corrected.

4.  Based on his adjusted date of rank for major to 27 August 1997, the
applicant was also eligible for promotion consideration to lieutenant
colonel under the 2003 and 2004 criteria.  It would now be appropriate to
submit his records for appropriate SSB's consideration for this purpose.

5.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_CVM___  __JEV__  _LMB ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse the failure to
timely file.  As a result, the Board recommends that all Department of the
Army records of the individual concerned be corrected by showing he was
promoted to major with a promotion effective date and date of rank of 27
August 1997, with entitlement to back pay and allowances.

2.  That following administrative implementation of the foregoing, his
records be submitted to duly constituted SSB's for promotion consideration
for lieutenant colonel under the 2003 and 2004 criteria.

3.  That if selected, his records be further corrected by showing he was
promoted to lieutenant colonel on his date of eligibility therefore, as
determined by appropriate Departmental officials under either the 2003 or
the 2004 criteria, with entitlement to all back pay and allowances,
provided he was otherwise qualified and met all other prerequisites for
promotion.

4.  That if not selected, the applicant be so notified.

5.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correction to his promotion effective date and date of rank for major to 30
April 1997.




                                  __     James E. Vick _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002788                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/26                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.01                                  |
|3.                      |131.05                                  |
|4.                      |131.10                                  |
|5.                      |                                        |
|6.                      |                                        |


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