RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:     10 November 2005
      DOCKET NUMBER:  AR20050004514


      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. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, promotion to captain in the United
States Army Reserve (USAR) under the 2000 criteria, with entitlement to
back pay and allowances, or promotion consideration to captain by a USAR
special selection board (SSB) under the 2000 criteria.  He also requests,
in effect, promotion to captain in the Regular Army (RA) under the 2002
criteria, with entitlement to back pay and allowances, or promotion
consideration to captain by a RA SSB under the 2002 criteria.

2.  The applicant states that through no fault of his own, he was deprived
of promotion consideration due to government error on two distinct
occasions.  He was incorrectly omitted from consideration by the 2000
Reserve Components Selection Board (RCSB) because there was an assumption
that he was on active duty.  He was improperly denied a waiver for
promotion to captain upon his return to active duty in 2002.  Upon arrival
in Korea, he sought to obtain a waiver of the regulatory requirement of one-
year of active duty service prior for promotion to captain.  He attempted
multiple times to submit the waiver request.  It was repeatedly lost by his
command.  The failure of the command to act on the waiver request deprived
him of promotion to captain in 2002.

3.  The applicant provides copies of his DA Form 71 (Oath of Office); his
DA Form 78-R (Recommendation for Promotion to first lieutenant/chief
warrant officer two); his DD Form 214 (Certification of Release or
Discharge from Active Duty); his Appointment as a Reserve Commissioned
Officer of the Army memorandum; his Statements of Service – For Computation
of Length of Service for Pay Purposes; his active duty orders, his DA
Form's 4037 (Officer Record Brief); his promotion orders for first
lieutenant and captain; and a statement of support from the former
adjutant, 2d Engineer Battalion, 2d Infantry Division.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR, as
a second lieutenant effective 15 May 1995, with prior enlisted service.  He
entered on active duty the same day.

2.  He was promoted to first lieutenant effective 3 June 1997.  He was
discharged from active duty effective 20 May 1998 and appointed in the USAR
effective 21 May 1998.

3.  On 26 September 2000, he was ordered to active duty for 3 years with a
reporting date of 25 October 2000.  On 26 October 2000, his orders for
active duty were revoked.

4.  He was ordered to active duty effective 4 February 2002.  His date of
rank for first lieutenant was adjusted to 1 February 2001, based on prior
time in grade (TIG) of 11 months and 17 days.

5.  Based on the required 5 years maximum TIG (MTIG), his USAR MTIG date
for captain was 2 June 2002.

6.  He was considered and selected for promotion to captain by the Fiscal
Year (FY) 2004 Captain Army Promotion Selection Board that recessed on
21 November 2003.

7.  He was promoted to captain effective 17 March 2004 and is currently
serving on active duty.

8.  The applicant submits a memorandum from the former adjutant, 2d
Engineer Battalion, 2d Infantry Division, dated 30 August 2004, in which
she stated that she was in contact with the applicant from April through
October 2002 in regards to his waiver for promotion.  The applicant
submitted a waiver several times through his chain of command and the
officer promotion section of the 509th Personnel Service Battalion, Eighth
United States Army.

9.  The applicant did not provide copies of his request for a waiver for
promotion.

10.  The Promotions Branch, US Army Human Resources Command (AHRC) –
Alexandria, Virginia, verified that the FY 2002 Captain Army Promotion
Selection Board convened from 5 through 22 November 2002.  The FY 2003
Captain Army Promotion Selection Board convened from 5 through 21 November
2002.  The FY 2002 and 2003 boards were held in the same year, 2002.  The
FY 2004 Captain Army Promotion Selection Board convened from 4 through
21 November 2003.

11.  In an advisory opinion, dated 10 May 2005, the Deputy Chief,
Promotions, Branch, AHRC – Alexandria, stated that the applicant entered on
active duty as a first lieutenant on 4 February 2002, with a date of rank
of 15 February 2001.  The applicant was not eligible for the FY 2003
Captain, Army Promotion Selection Board which convened on 5 November
2003[sic] and recessed on 21 November 2002.  The applicant stated he
requested a waiver of the one-year active duty requirement rule; however,
it did not arrive at AHRC, Alexandria.  Additionally, the applicant did not
provide a copy of the waiver with his request to the Army Board for
Correction of Military Records.

12.  The opinion also stated that the applicant was considered and selected
for promotion to captain by the FY 2004 Captain, Army Promotion Selection
Board that recessed on 21 November 2003.  He was promoted to captain on 17
March 2004.  The applicant's records are correct and no action is required
by this headquarters.  Since there is no basis to consider the applicant as
an omission to be considered by the FY 2002 promotion board, it was
recommended the applicant's request be denied.

13.  In an advisory opinion, dated 12 August 2005, the Chief, Promotions
Branch, Office of Promotions, Reserve Components, AHRC – St. Louis,
Missouri, stated that based on documentation submitted by the applicant and
the information obtained from the applicant's official military personnel
file, applicant was in the RA from 15 May 1995 through 20 May 1998.  During
this active duty time, applicant was promoted to first lieutenant on 3 June
1997.  Based on the date of rank to first lieutenant, and the 5 years MTIG,
applicant had a promotion eligibility date to captain of 2 June 2002.  The
zone of consideration for the 2000 Captain Selection Board was for first
lieutenants whose date of rank was 16 May 1997 and earlier.  Therefore, the
applicant does not have a basis for a SSB under the 2000 criteria.

14.  The opinion also stated that the applicant would have had a basis for
consideration under the 2001 criteria RCSB; however, the applicant was
ordered to active duty on 2 February 2002 and the 2001 RCSB was approved on
1 March 2002.  Had the applicant been considered and selected, the
promotion would not have been transferable.  Subsequently, upon his return
to active duty, the applicant was given an adjustment of his date of rank
of 15 February 2001 to first lieutenant (based on prior TIG of 11 months
and 17 days) and then he was promoted to captain while on active duty with
a date of rank of 17 March 2004.  Based on these facts, it was recommended
the applicant's requests be denied.

15.  The advisory opinions were forwarded to the applicant for
acknowledgement and/or rebuttal on 23 September 2005.  He did not respond.

16.  Army Regulation 600-8-29 prescribes the policies and procedures for
the promotion of Regular Army and Army Reserve commissioned officers on the
Active Duty List (ADL).  This regulation specifies that the law established
no minimum time in grade requirements for first lieutenants; however, an
officer must have at least 2 years TIG to be promoted to captain.  A date
of rank of an officer who is placed on the ADL in his/her current Reserve
grade of captain or higher will be the date of placement on the ADL
backdated by a period equal to the lesser of a higher grade, plus all
periods of active duty service in the military service of the United
States, performed in the grade in which ordered to active duty and placed
on the ADL.  Section V (Precedence and Date of Rank) also specifies that an
active date of rank will be used to determine the eligibility of officers
on the active duty list for promotion and the AHRC Command will determine
the active dates of rank.

17.  Army Regulation 600-8-29 also specifies that to be considered for
promotion by a selection board, an officer must be on the ADL on the day
the board convenes.  The Chief, Office of Promotions, HRC – Alexandria, is
the managing authority for promotion of all officers on the ADL.  Officers
with less than one-year of continuous active duty (since their most recent
placement on the ADL) before the board convenes may request for an
exception to the one-year requirement.  Request must be forwarded to the
Commander, HRC – Alexandria. The requests must substantiate that the
officer's break in service did not warrant the protection provided by the
one-year active duty requirement.  Requests for exception will be processed
on a case-by-case basis.

18.  Army Regulation 600-8-29 also specifies that promotion consideration/
reconsideration by a SSB may only be based on erroneous non-consideration
or material error that existed in the record at the time of consideration.


19.  Army Regulation 135-155, prescribes the policies and procedures for
the promotion of Reserve officers on the Reserve Active Status List (RASL).
 This regulation specifies that selection boards will considerer USAR
officers, in all competitive categories, who are in an active Reserve
status no later than the date a respective RCSB convenes to be considered
by that RCSB for a Reserve promotion.  The regulation also specifies that
officers on the ADL will not be considered.  The Chief, Office of
Promotions, HRC – St. Louis, is the managing authority for promotion of all
officers on the RASL.

20.  Army Regulation 135-155, also specifies that promotion consideration/
reconsideration by a 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.  The applicant is not entitled to promotion to captain in the USAR under
the 2000 criteria, or in the RA under the 2002 criteria, or promotion
consideration by a USAR or RA SSB.  He has not shown error or injustice for
the relief he is requesting.
2.  The applicant's contentions that he should have been considered for
promotion to captain in the USAR in 2000 and in the RA in 2002 have been
noted.  However, the applicant entered on active duty and was promoted to
first lieutenant effective 3 June 1997.  He was discharged from active duty
in May 1998 and appointed in the USAR.  Based on the required 5 years MTIG,
his MTIG date for captain in the USAR was 2 June 2002.  The zone of
consideration for the 2000 RCSB was for first lieutenants whose date of
rank was 16 May 1997 and earlier.  Therefore, the applicant was not
eligible for promotion to captain in the USAR under the 2000 criteria and
does not have a basis for a SSB under the 2000 criteria.  The applicant was
ordered to active duty on 2 February 2002; therefore, had he been
considered and selected by the 2001 RCSB, the promotion would not have been
transferable.

3.  The applicant was not eligible for the FY 2002 Captain, Army Promotion
Selection Board which convened on 5 November and recessed on 22 November
2002, because he had not been on the ADL for one-year.  He was also not
eligible for the FY 2003 Captain, Army Promotion Selection Board which
convened on 5 November and recessed on 21 November 2002, because he had not
been on the ADL for one-year.  Therefore, he does not have a basis for a
SSB under the 2002 or 2003 criteria.

4.  The applicant states he requested a waiver of the one-year active duty
requirement rule; however, HRC, Alexandria has verified that his request
was not received in their office.  The applicant has not satisfactorily
shown that he requested and was denied a waiver of the one-year active duty
requirement rule.

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 requirement.

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

BOARD VOTE:

_MKP___  __LDS__  _MJF ___  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 for correction of the
records of the individual concerned.




                                  ___   _M. K. Patterson_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004514                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |Active Duty                             |
|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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