RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050005724


      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. Prevolia A. Harper            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 correction of his records to show his date of
rank to lieutenant colonel (LTC) as 16 February 2002.

2.  The applicant states that his date of rank should be adjusted so he can
compete in the 2005 Colonel Promotion Board and does not want any back pay.


3.  The applicant provides:

      a.  A promotion memorandum from Headquarters, United States Army
Special Operations Command, Fort Bragg, North Carolina, dated 25 July 2002.



      b.  A self-authored undated letter.


      c.  An email from a lieutenant colonel from the applicant’s former
command at Fort Bragg, dated 7 October 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that the applicant was commissioned and
entered active duty on 25 May 1983.  On 10 December 1993, the applicant
submitted a request for unqualified resignation for the purpose of
receiving the Fiscal Year 1994 Army Officer Voluntary Incentive Program.
His request was approved and he was honorably separated from active service
on to 25 May 1994.  The highest rank he obtained while serving on active
duty was captain.

2.  On 26 August 1994, the applicant was commissioned in the United States
Army Reserve in the rank of captain.  The applicant is currently serving in
the United States Army Reserve (USAR) as a member of Troop Program Unit
(TPU) in the rank of lieutenant colonel.

3.  The applicant’s records show that he was promoted to major on 24 May
1995.

4.  The applicant was considered and selected by the 2001 Lieutenant
Colonel Department of the Army Reserve Components Selection Board (DARCSB).
 The selection list was approved and signed by the President on 1 February
2002 and released on 28 February 2002.



5.  The applicant provided a self-authored letter in which he stated that
he requested approval to go before the 2005 United States Army Reserve
Colonel Promotion Board.  He continued that in order to accomplish this, he
requests that his date of rank of 24 July 2002 be adjusted to 16 February
2002.  He further stated that he was selected to lieutenant colonel;
however, he was asked to remain in a command position although he had
secured a LTC position with the School Brigade in Columbus, Ohio.

6.  The applicant noted that he was asked to remain in the major’s position
until May 2002 in order to ensure a smooth transition for the incoming
commander.  He stated that he was interested in doing what was in the best
interests of Soldiers and did not realize that taking care of the unit
would have such a
significant impact on his military career.  The applicant further stated
that he requests an adjustment in his date of rank in order to remain
competitive with fellow officers in his year group.

7.  The applicant provided a memorandum from Headquarters, United States
Army Special Operations Command, Fort Bragg, North Carolina, dated 25 July
2002.  This memorandum shows that the applicant’s promotion to lieutenant
colonel was effective on 24 July 2002.

8.  The applicant provided a copy of an email which a lieutenant colonel in
his former command stated that he recalled asking the applicant to stay
until May 2002 to allow a smooth transition.

9.  In connection with the processing of this case, an advisory opinion was
obtained from the Military Personnel Officer at Headquarters, United States
Army Special Operations Command (USASOC), Fort Bragg, North Carolina.  The
opinion stated that the applicant’s history of transfer orders and officer
evaluation reports had been reviewed and it was determined that his date of
rank of 24 July 2002 to be correct.  The advisory opinion further stated
that the fact that the applicant remained with his unit to fulfill duties
and ensure a smooth transition for the incoming commander kept the
applicant in a major position until the date of his transfer to a
lieutenant colonel position on 24 July 2002.

10.  The advisory opinion also stated that in accordance with Army
Regulation 135-155 (Army Regulation 135-155 (Promotion of Commissioned
Officers and Warrant Officers Other Than General Officers), unit officers
selected by a mandatory board will have a promotion date and effective date
no earlier than the date the board is approved or the date of Senate
confirmation, provided they are assigned to a position in a higher grade.
The opinion further stated that when the board approval is before the
assignment to the position in the higher grade, the effective date and date
of promotion will be the date of the assignment to the higher graded
position.  The Military Personnel Officer also stated that he discovered a
large period of non-rated time from 24 July 2002 to 29 November 2003.

11.  On October 3, 2005, the applicant was provided a copy of the advisory
opinion in order to have the opportunity to respond.  To date, he has
failed to reply.

12.  Army Regulation 135-155, paragraph 4-21states that the effective date
of promotion will be no earlier than the approval date of the board, the
date of Senate confirmation, or the date the officer is assigned to the
position, whichever is later.  If not occupying the position, assignment of
selectees to position vacancies will take place immediately on announcement
of the results of the board.  Section 2, states that unit officers selected
by a mandatory board will have a promotion date and effective date no
earlier than the date the board is approved or the date of Senate
confirmation (if required) provided they are assigned to a position in the
higher grade.  When board approval or Senate confirmation is before
assignment to the position in the higher grade, the effective date and the
date of promotion will be the date of assignment to the higher graded
position.

13.  Section 14304 of Title 10 United States Code provides the legal
authority for eligibility for consideration for promotion based on maximum
years of service in grade provisions of the law.  Subsection (a) states, in
pertinent part, that officers shall be placed in the promotion zone and
shall be considered for promotion to the next higher grade by a promotion
board convened under section 14101(a) of this title, far enough in advance
of completing the maximum years of service in grade so that, if the officer
is recommended for promotion, the promotion may be effective on or before
the date on which the officer will complete those years of service.  The
table in subsection (a) establishes the maximum years of service in grade
for a captain to be promoted to major as seven years and for a major to be
promoted to lieutenant colonel as seven years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his LTC date of rank should be changed
from July 2002 to February 2002 and the supporting documents he submitted
were carefully considered.  However, there is an insufficient evidentiary
basis to support granting the requested relief.

2.  The evidence of record confirms that the applicant was considered and
promoted to LTC by the 2001 DA RCSB based on his previous date of rank to
major on 24 May 1995 and was within the time in grade restraints outlined
in the regulation.  As pointed out in the advisory opinion from USOSOC and
Army Regulation 135-155, the effective date of promotion will be the date
of assignment to the higher grade.

3.  The applicant stated that upon his selection to promotion, he was asked
to remain in the major’s command position until May 2002.  Although, the
applicant provided an email which shows that he was asked to remain in
command during transition, the applicant provided no evidence to support
his claim that he had already been assigned to a LTC position.

4.  Further, the advisory opinion from USASOC, stated that the applicant
wasn’t assigned to the LTC position until 24 July 2002.  Therefore, lacking
evidence to show that the applicant’s promotion was unjustly delayed by the
chain of command or due to some administrative error, the Board concludes
that the requested relief is not warranted in this case.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LDS   _  __REB __  __RMN__  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.





                                  ____Linda D. Simmons ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005724                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060112                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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