RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      22 December 2005
      DOCKET NUMBER:  AR20050004573


      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. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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, further adjustment to his date of
rank for captain.

2.  The applicant states that he accepted a direct commission to first
lieutenant in 1999 in the Army Nurse Corps (ANC) to attend Nurse Anesthesia
training.  The ANC required him to begin service at the rank of first
lieutenant.  At that time he was a senior major in the Armor Branch and was
serving as the Health Services Brigade S-3 when he entered the ANC.  He
also states that he strongly believes that his current date of rank for
captain should be more accurately in line with his education, experience,
year-group, time in service, dedication to mission, and military leadership
experience.

3.  The applicant provides copies of his official military personnel file
and his biographical summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 August 1999, the date of his appointment in the United
States Army Reserve (USAR), ANC.  The application submitted in this case is
dated 11 November 2004 and was received on 23 March 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 USAR,
Armor Branch, as a second lieutenant, effective 30 July 1982, with prior
enlisted service.  He was promoted to first lieutenant effective 30 July
1984.

4.  He was promoted to captain effective 29 January 1988 and to major
effective 8 December 1995.

5.  He was appointed in USAR, ANC, as a first lieutenant effective
31 August 1999, with 6 years, 3 months, and 6 days constructive service
credit (CSC).  Two years of
the remaining 4 years, 3 months, and 6 days excess CSC adjusted his date
of rank for first lieutenant to 25 May 1995.  He was appointed with age
and age in grade waivers.

6.  A search of his records did not contain, and the applicant did not
submit, a copy of his DA Form 5074-1-R (Record of Award of Entry Grade
Credit (Health Services Officers)) to show how his CSC was applied.

7.  Based on his date of rank for first lieutenant and the required 5 years
in the lower grade, his maximum years in grade (MYIG) date for promotion to
captain was 24 May 2000.

8.  He was issued a promotion memorandum, dated 2 October 2001, showing his
promotion effective date and date of rank for captain was 1 October 2001.

9.  On 23 May 2002, (AR2002073180), the Army Board for Correction of
Military Records (ABCMR) recommended that his date of rank for captain be
adjusted to 25 June 2000, the date final board action should have occurred
had the 2000 Army Medical Department (AMEDD) Reserve Component Selection
Board been timely processed within approximately 100 days.

10.  He was awarded a Master of Nurse Anesthesia degree on 14 December
2002.

11.  He was issued a corrected promotion memorandum, dated 2 October 2001,
showing his promotion effective date and date of rank for captain was 25
June 2000.

12.  Army Regulation 135-101, prescribes the policies, procedures, and
eligibility criteria for the appointment of commissioned officers in the
Reserve in the six branches of the AMEDD.  This regulation specifies that
grade and date of rank upon original appointment and assignment to an AMEDD
branch will be determined by the number of years of entry grade credit
awarded.  Entry grade credit granted will be the sum of CSC and credit for
prior active commissioned service and computation will be completed at the
US Army Medical Department Personnel Support Agency.  CSC will be granted
for periods of professional training and experience accrued after receipt
of the basic qualifying degree.  Entry grade credit of 3 years or more, but
less that 7 years, provides the entry grade of first lieutenant.
Authorized credit in excess of the minimum required for appointment to the
appropriate grade will be used to adjust the date of rank within the grade.

13.  Army Regulation 135-101 also prescribes that award of CSC for advanced
education is based upon a completed program (degree awarded) prior to
application for appointment.  CSC for advanced education is not awarded
after appointment.  CSC for completion of military education and
professional experience gained after appointment is not authorized.

14.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary
(Manpower and Reserve Affairs) acknowledged that pertinent Army agencies
had agreed that the faulty promotion policy for promotion to captain should
be revised, and that actions would be initiated for this purpose.  He
further stated that affected individuals would be advised they could seek
relief from the ABCMR which could adjust dates of rank for those who were
first-time considered and selected for promotion to captain, after having
served more than 7 combined MYIG as a second and first lieutenant.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to further adjustment to his date of rank for captain.  He has not
shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions have been noted; however, the applicant was
promoted to major with a date of rank of 8 December 1995 while serving in
the Armor Branch.  It appears that information provided in conjunction with
his subsequent appointment in the ANC, as a first lieutenant, entitled him
to award of 6 years, 3 months, and 6 days CSC.  His entry grade and date of
rank was determined by the number of years of entry grade credit awarded.
The 4 years, 3 months, and 6 days CSC in excess of the 2 years applied
toward his entry grade of first lieutenant, adjusted his date of rank
within that grade.  It appears the applicant's prior service credit and/or
professional experience made him eligible for appointment in the ANC as a
first lieutenant instead of a second lieutenant.

3.  His available records also do not show he is entitled to award of
additional CSC and possible adjustment to his date of rank for captain
based on experience, civilian and military education earned after this
appointment in the ANC.  Based upon regulatory guidance, initial CSC is
awarded at the time of appointment.

4.  Therefore, based on the evidence provided at the time of the
applicant's application for appointment, his initial CSC awarded at the
time of his appointment was correct.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1999, the date of his
appointment in the USAR, ANC; therefore, the time for the applicant to file
a request for correction of any error or injustice expired on 30 August
2002.  However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

6.  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

__TSK __  __JBM __  __RLD__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____Ted S. Kanamine_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004573                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.05                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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