RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      13 December 2005
      DOCKET NUMBER:  AR20050003750


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr.  Melvin H. Meyer              |     |Member               |
|     |Mr. Allen L. Raub                 |     |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, adjustment to his date of rank for
major.

2.  The applicant states that his date of rank should be 11 April 2002,
based on previous findings.  His records did not go before the 19 May 2003
Position Vacancy Board (PVB).  The file was sent before the September 2003
PVB.  He bases this on the lack of any formal correspondence or ability to
obtain the results of the May 2003 PVB.

3.  The applicant provides copies of an advisory opinion from the Chief,
United States Army Reserve (USAR) Boards Support Branch, Human Resources
Command (HRC) – St. Louis, Missouri; a response from the Chief, Screening
Team, Army Review Boards Agency (ARBA); and the Results of the September
2003 PVB, USAR.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR as a
second lieutenant, effective 29 July 1990.

2.  He was promoted to first lieutenant effective 28 July 1993 and to
captain effective 25 June 1998.

3.  He was issued a corrected promotion memorandum, dated 31 May 2001,
indicating an adjustment to his promotion effective date and date of rank
for captain to 28 July 1997.

4.  He was considered and not selected for promotion to major by the 2003
PVB that convened on 19 May 2003.  The President approved the board results
on 5 November 2003.

5.  He was considered and selected for promotion to major by the 2003 PBV
that convened on 22 September 2003.  The President approved the board
results on 11 March 2004.

6.  He was promoted to major effective 19 June 2004.

7.  In an advisory opinion, dated 14 May 2003, the Chief, USAR Boards
Support Branch, HRC – St. Louis, Missouri, stated that the applicant
submitted a packet for the 14 January 2002 PVB for troop program unit (TPU)
positions.  The
database reflected a date of rank of 25 June 1998.  With that date of rank,
the applicant was not eligible for consideration by the 14 January 2002
PVB.  In accordance with Army Regulation 135-155, Table 2-1, he had to meet
the 4 years time in grade requirement by 13 January 2002.

8.  The opinion also stated that the US Army Special Operations Command
issued the applicant a corrected promotion memorandum promoting him to
captain with an adjusted date of rank of 28 July 1997.  This was a result
of an Army Board for Correction of Military Records (ABCMR) action called
the Reserve Officer Personnel Management Act, Phase 1 (Green) which
corrected captains' dates of rank.  With that date of rank, the applicant
did meet the time in grade requirements and should have had his packet
reviewed by the 14 January 2002 PVB.  Instead, the board recorder, Office
of Promotions, Reserve Components, HRC – St. Louis, removed the packet from
consideration based on the date of rank reflected in the database.  That
was an incorrect action.

9.  The opinion further stated that the applicant had a packet being
considered by the PVB that was convening on 19 May 2003.  It was
recommended, that if the applicant was placed on a select list as a result
of that PVB, the ABCMR direct that he be promoted as if he had been
selected by the 14 January 2002 PVB.  That would mean he would have had to
fill the exact position for which selected.  His date of rank and effective
date would be 11 April 2002, the date the President approved the 14 January
2002 PVB.  Additionally, he must have a current physical (within 5 years of
the 19 May 2003 PVB approval date), a current Army Physical Fitness Test
and height/weight within the last 12 months of the 19 May 2003 approval
date, a security clearance, and not be under a suspension of favorable
personnel actions (flagged) per Army Regulation 600-8-2, Suspensions of
Favorable Personnel Actions.

10.  In a response, dated 9 June 2003, the Chief, Screening Team, ARBA,
advised the applicant that the ABCMR had obtained a favorable opinion.
However, the favorable recommendation was predicated on whether he was
selected for promotion by the 19 May 2003 PVB and met certain promotion
criteria.  In view of the foregoing, his application was closed without
action.  If he was selected, he could reapply after the President had
approved the PVB.  If he did reapply, he must enclose a statement from his
command certifying his eligibility for promotion by meeting the required
promotion criteria.

11.  Army Regulation 135-155, prescribed the policies and procedures for
the promotion of Reserve Component officers.  The regulation specifies that
officers in the grade of captain may be eligible for promotion
consideration to major by a

PVB upon completion of 4 years time in grade.  Promotion to fill authorized
troop program unit (TPU) position vacancies may be filled through promotion
of the best-qualified and geographically available officer to the grades of
captain through colonel.  All TPU officers in the next lower grade must
have met the minimum time in grade for promotion to the next higher grade
and be geographically (non-mobilized) available to serve in the position
for which considered.

12.  Army Regulation 135-155 does not provide for promotion consideration
by a special selection board for erroneous non-consideration by a PVB.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to promotion to major with a date of rank of 11 April 2002, the
approval date of the May 2003 PVB.  He has not shown error, injustice, or
inequity for the relief he now requests.

2.  It is noted that while the applicant was erroneously not considered by
the January 2002 PVB, pertinent regulations do not provide for promotion
consideration by a special selection board for erroneous non-consideration
by a PVB.

3.  It is also noted that while it was recommended that if the applicant
was recommended by the May 2003 PVB, he be promoted as if he was selected
by the January 2002 PVB.  It was also recommended he be promoted with a
promotion effective date and date of rank of 11 April 2002, the
Presidential approval date of the January 2002 PVB, provided he met all
qualifications for promotion at that time.  However, the applicant was
considered and not selected by the May 2003 PVB.  Therefore, he is not
eligible for promotion to major with a promotion effective date and date of
rank of 11 April 2002.  Also, the applicant has not submitted sufficient
evidence to show that he met all qualifications for promotion on 11 April
2002.

4.  The applicant was considered and selected for promotion to major by the
September 2003 PVB with an approval date of 11 March 2004.  It is concluded
that the applicant was subsequently assigned to a vacant major's position
effective 19 June 2004 and met all requirements for promotion; therefore,
his promotion effective date and date of rank for major are correct.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ALR____  __MM __  __SLP __  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.




                                  ____Shirley L. Powell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003750                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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