RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050004574


      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. John Slone                    |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |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, adjustment to his date of rank for
lieutenant colonel from 28 May 2002 to 1 February 2002 for earlier
promotion consideration to colonel.

2.  The applicant states that he was not promoted on the February 2002
promotion list because he had not been placed in a lieutenant colonel's
position prior to the list being released.  He had 3 years time in grade
(TIG) as a lieutenant colonel on 28 May 2005 when his colonel promotion
board convened in July 2005.  However, the cut-off date for consideration
by the 2005 promotion board was 31 March 2005.  He requests favorable
consideration of this request due to no error on his behalf.

3.  The applicant provides a copy of his promotion memorandum for
lieutenant colonel.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United
States Army Reserve (USAR), as a second lieutenant, effective 22 May 1983.

2.  He entered on active duty effective 23 May 1984.  He was promoted to
first lieutenant effective 23 November 1985 and to captain effective 1
April 1988.  He was separated from active duty effective 1 August 1993.

3.  He was assigned to the Active Guard Reserve (AGR) program effective
4 April 1994.

4.  He was promoted to major effective 22 July 1996, with a date of rank of
21 May 1995.

5.  He was considered and selected for promotion to lieutenant colonel by
the 2001 Reserve Components Selection Board (RSCB) that convened on
5 September and recessed on 2 October 2001.  The President approved the
board results on 1 February 2002.

6.  Based on the required 7 years maximum TIG, his promotion eligibility
date (PED) for lieutenant colonel was 20 May 2002.

7.  He was issued a promotion memorandum, dated 23 May 2002, indicating his
promotion effective date and date of rank for lieutenant colonel was 28 May
2002, based on his assignment to an AGR lieutenant colonel's position.

8.  Based on the required 3 years minimum TIG, his PED for colonel was 27
May 2005 for promotion consideration by a Position Vacancy Board (PVB).

9.  In an advisory opinion, dated 2 May 2005, the Chief, Promotions Branch,
Office of Promotions, Reserve Components, Human Resources Command, St.
Louis, Missouri, stated that the applicant was selected for promotion to
lieutenant colonel by the 2001 RCSB and the board results were approved on
1 February 2002.  The applicant was promoted on orders dated 23 May 2002,
with a date of rank of 28 May 2002.  His date of rank is in accordance with
Army Regulation 135-155 which states an AGR officer will be promoted to the
higher grade upon assignment to the higher graded position.  The applicant
was assigned to the higher grade position on 28 May 2002; therefore, that
is the earliest date of rank he is eligible for.  In view of the facts, it
was recommended the applicant's request be denied.

10.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 25 July 2005.  He did not respond.

11.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  Paragraph 4-21d of the regulation specifies
that troop program unit and AGR officers selected by a mandatory board will
be promoted provided they are assigned/attached to a position in the higher
grade.  A TPU or AGR officer who is selected for promotion by a mandatory
promotion board, but who is not assigned/attached to a higher graded
position will be promoted on the date of assignment/attachment to a higher
graded position or the day after release from a TPU or AGR status.  The
date of rank will be the date on which assigned/attached to a position in
the higher grade.  Promotion cannot be effective prior to approval of the
respective board by the President.

12.  Army Regulation 135-155, also specifies that officers in the grade of
lieutenant colonel may be eligible for promotion consideration to colonel
by a PVB upon completion of 3 years minimum time in grade.  Promotion to
fill authorized position vacancies will be made through promotion of the
best-qualified officers.  The USAR AGR position vacancy promotion system is
designed to promote officers to fill vacancies in USAR AGR positions that
cannot


be filled by qualified USAR AGR officers of the authorized grade currently
serving in the USAR AGR Program.  The officer must have completed the
minimum TIG for promotion to the next higher grade by the day before the
convening date of the board.

13.  Army Regulation 135-155 also specifies that the Secretary of the Army,
or his or her designee, will establish the zone of consideration for each
PVB for commissioned officers.  The regulation also does not provide for
promotion consideration by a special selection board for erroneous non-
consideration by a PVB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to adjustment of his date of rank for
lieutenant colonel to 1 February 2002 for earlier promotion consideration
to colonel by a PVB.  He has not shown error or injustice for the relief he
is requesting.

2.  The applicant's contentions have been noted; however, the applicant was
assigned to an AGR lieutenant colonel's position effective 28 May 2002.  He
was not eligible for promotion to lieutenant colonel effective 1 February
2002, the presidential approval date of the 2002 RCSB, as he had not been
assigned to a higher graded position on that date.  His date of rank and
promotion effective date for lieutenant colonel are proper and he has not
shown otherwise.

3.  It is also noted that the Secretary of the Army establishes all
promotion zones for each PVB.  The applicant met the 3 years minimum TIG
requirement; however, he did not meet the date of rank requirement.
Therefore, the applicant's date of rank for lieutenant colonel did not
place him in the established promotion zone for consideration by the 2005
PVB.  Pertinent regulations do not provide for promotion consideration by a
special selection board for erroneous non-consideration by a PVB.

4.  There is no indication that the applicant’s date of rank for lieutenant
colonel and non-consideration for promotion to colonel by a PVB was unjust
or inequitable.  There is no evidence of record that shows that his date of
rank for lieutenant colonel and non-consideration was contrary to law.
Without evidence to show otherwise, it is concluded that the applicant's
date of rank was proper and he will be properly considered for promotion to
colonel within future established zones of consideration.


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

_MJF___  _LGH___  _JS _____  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.




                                  ______John Slone_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004574                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051214                                |
|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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