RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 October 2006
      DOCKET NUMBER:  AR20050009478


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann             |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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, that his first lieutenant (1LT) date
of rank (DOR) be adjusted to August 1995, and that his captain (CPT) date
of rank be adjusted to August 2000.

2.  The applicant states, in effect, he was appointed a second lieutenant
(2LT) in the Regular Army (RA) on 15 August 1993.  As a result, he should
have been promoted to 1LT in August 1995; however, the Army failed to
promote him at the two year mark, and he was not promoted to 1LT until 14
August 1996.

3.  The applicant provides the following documents in support of his
application:  RA Separation Document (DD Form 214); 1LT Promotion Orders;
CPT Promotion Memorandum; Reassignment Orders; and Officer Evaluation
Reports for August 2001 through April 2004.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040002726, on 29 June 2004.

2.  The applicant’s record shows he was appointed a 2LT in the RA and
entered active duty on 15 August 1993.  On 15 August 1995, he was honorably
released from active duty (REFRAD) after completing 2 years and 1 day of
active military service.  At this time, he was transferred to the USAR
Control Group.

3.  On 15 August 1995, the applicant was appointed a 2LT in the United
States Army Reserve (USAR), and subsequently, on 26 March 1996, he was
appointed a 2LT in the Army National Guard (ARNG).  On 14 August 1996, he
was promoted to 1LT.

4.  On 30 August 2001, he was assigned to a USAR Troop Program Unit (TPU),
and assumed a CPT position.  He was considered and selected for promotion
to CPT by the 2000 Reserve Component Selection Board (RCSB), which was
approved by the President on 20 March 2001.  He was promoted to CPT on
8 February 2002.  Based on the 29 June 2004 recommendation of this Board,
his CPT promotion date was changed to 30 August 2001, the date he assumed a
CPT's position.


5.  Army Regulation 135-100 (Appointment of Commissioned and Warrant
Officers of the Army) prescribes policy and procedures for the appointment
of commissioned and warrant officers in the ARNG and USAR.  Paragraph 1-9
contains guidance on grade upon appointment.  It states, in pertinent part,
that a commissioned officer of a regular component who is discharged or who
resigns may be appointed as a Reserve commissioned officer.  The
appointment will be in the grade, with time in grade for promotion purposes
equal to the amount of time in the permanent grade held as a regular
officer at the time of discharge or resignation.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers other than General Officers) prescribes policy and procedures used
for selecting and promoting commissioned officers of the ARNG and
commissioned and warrant officers (WO) of the USAR.  Chapter 2, section III
(Board Consideration), states that boards will convene each year and will
consider officers on the Reserve Active Status List (RASL) for promotion to
captain through lieutenant colonel without regard to vacancies in the next
higher grade.  It also states, in pertinent part, that the first
consideration for promotion will occur well in advance of the date the
officer will complete the maximum years in grade (MYIG) requirements in
table 2-1 or table 2-3, as appropriate.  Table 2-1 of this regulation
outlines the service requirements for promotion and indicates that the MYIG
requirement for promotion to 1LT is 42 months and the MYIG for promotion to
CPT is 5 years.

7.  10 USC 14304 provides the legal authority for eligibility for
consideration for promotion based on MYIG provisions of the law.  Paragraph
(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 MYIG 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 law
established the MYIG for promotion from 1LT to CPT as 5 years.  Paragraph
(b) states, in effect, that a RC officer who is recommended for promotion
to the next higher grade by a selection board the first time they are
considered for promotion and who is placed on an approved promotion list
shall be promoted, without regard to the existence of a vacancy, on the
date on which the officer completes the MYIG specified in this law.

9.  The Reserve Officer Personnel Management Act (ROPMA) prescribed the
policies and procedures to consolidate and modernize the laws governing the
management of Reserve Component officers.  ROPMA specified that 2LTs serve
a MYIG of 2 years before promotion to 1LT and that a 1LT serve a MYIG of
5 years before promotion to CPT.  ROPMA further specifies, in pertinent
part, that the officer must be serving in a position requiring the higher
grade if assigned to a Troop Program Unit (TPU) or Active Guard Reserve
(AGR) position, or be assigned to the Individual Ready Reserve (IRR) or an
Individual Mobilization Augmentee position in order to be promoted.

10.  An Acting Principal Deputy Assistant Secretary of the Army (ASA),
Manpower and Reserve Affairs (M&RA) Memorandum, dated 3 December 1997,
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.  It further indicated that the
affected individuals would be advised they could seek relief from this
Board, which could adjust DOR for members who had served more than 7
combined MYIG as a lieutenant.  The working policy established by ASA, M&RA
and the Board to act on these cases, which was concurred with by the Office
of The Judge Advocate General (OTJAG), required that promotion dates
established by the Board for TPU officers would be based on the date they
assumed a position in the higher grade in addition to the MYIG.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his promotion date to CPT should have
been in August 2000 based on the total time he served as a lieutenant was
carefully considered.  However, there is insufficient evidence to support
amendment of the Board's original decision in this case.

2.  The equity policy established by the Acting Principal Deputy, ASA, M&RA
and the Board, with the concurrence of the OTJAG, to provide equity relief
to lieutenants under the ROPMA established that members would be promoted
to CPT based on 7 combined MYIG once they met all requirements for
promotion, which included assignment to a vacancy in the higher grade for
TPU and AGR officers.  During the original review of the case, the Board
recommended the applicant's promotion date be adjusted to 31 August 2002,
which was the date he assumed a CPT's position in his unit.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PHM    __DRG__  __RSV__  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 to amend the decision of
the ABCMR set forth in Docket Number AR20040002726, dated 29 June 2004.




            ____Patrick H. McGann_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050009478                           |
|SUFFIX                  |                                        |
|RECON                   |AR20040002726  2004/06/29               |
|DATE BOARDED            |2006/10/16                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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