RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      24 August 2006
      DOCKET NUMBER:  AR20050013113


      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. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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
captain from 29 October 1999 to 18 January 1999.

2.  The applicant states, in effect, he thinks his date of rank should be
18 January 1999.  He received his commission in the Regular Army, Officer
Candidate School, Fort Benning, Georgia, on 18 January 1991.  He was in
the Army National Guard (ARNG) when he was promoted to captain on
29 October 1999.  He received a letter stating that he was promoted on 26
June 1999, but he was not in a slot.  The Federal budget was suspended
during this process and the ARNG never corrected the error.

3.  He further states that he served in the ARNG until 11 March 2003 and
then transferred to the United States Army Reserve (USAR) and was deployed
to Iraq. The USAR Personnel Management Officer (PMO) informed him that he
should already have been boarded for major and that he was a year behind.
He has completed 2 tours, served as company commander, and completed two
advanced courses (Infantry Captains Career Course and Civil Affairs Officer
Advance Course (OAC)).  He has served in major slots at both the battalion
and brigade level.  Correcting his date of rank would allow him to remain
competitive with his year group.  He would not be considered for promotion
to major until 2006.

4.  The applicant provides copies of his USAR oath of office and
appointment memorandum; his diplomas for the Psychological Operations
Officer course, the Civil Affairs OAC, and the Infantry Captains Career
Course; his ARNG appointment orders and certificate; his Promotion as a
Reserve Commissioned Officer of the Army (Army Regulation 135-155)
memorandum; and his DD Form 214 (Certificate of Release or Discharge From
Active Duty), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on 29 October 1999, the date of his USAR promotion to captain.  The
application submitted in this case is dated 1 September 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 limitations 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 records show that he was discharged from the Regular
Army, as a sergeant, effective 17 January 1991, for the purpose of
accepting a commissioned in the USAR.

4.  He was appointed in the USAR, as a second lieutenant, effective 18
January 1991.   He was promoted to first lieutenant effective 17 January
1994.

5.  The applicant was transferred from the USAR and appointed in the Iowa
(IA) ARNG, as a first lieutenant, effective 7 February 1997.

6.  He was considered and selected for promotion to captain by the 1997
Reserve Components Selection Board (RCSB) that convened on 13 November and
adjourned on 12 December 1997.  The President approved the board results
on 25 June 1998.

7.  The Total Army Personnel Command (ARPERSCOM), St. Louis, Missouri,
issued to the National Guard Bureau (NGB) an Eligibility for Promotion as
a Reserve Commissioned Officer Not on Active Duty memorandum, dated 30
July 1998, announcing the applicant's selection for promotion to captain
by the 1997 RCSB.  The memorandum advised that the effective date of
promotion would be the later of the following dates:  a. 16 January 1999
(the applicant's promotion eligibility date (PED)); or b.  The date
Federal recognition was extended in the higher grade; or c.  The date
following the date Federal recognition was terminated in the current
Reserve grade.  The memorandum further advised that if the officer
accepted promotion and Federal recognition was not extended in the next
higher grade, he would be transferred to the USAR on the day following the
date of termination of Federal recognition, in his current grade.

8.  The Michigan (MI) ARNG published Orders Number 055-003, dated
24 February 1999, appointing the applicant in the MIARNG, as a first
lieutenant, effective 16 February 1999.

9.  The NGB published Special Orders Number 65AR, dated 8 April 1999,
transferring the applicant from the USAR to the MIARNG, as a first
lieutenant, effective 16 February 1999.  His records do not show he was
transferred from the IAARNG to the USAR prior to this transfer.

10.  The ARPERSCOM, St. Louis, issued to the NGB a second Eligibility for
Promotion as a Reserve Commissioned Officer Not on Active Duty memorandum,
dated 19 May 1999, announcing the applicant's selection for promotion to
captain by the 1997 RCSB.  The memorandum again advised that the effective
date of promotion would be the later of the following dates:  a.
16 January 1999 (the applicant's PED); or b.  The date Federal recognition
was extended in the higher grade; or c.  The date following the date
Federal recognition was terminated in the current Reserve grade.  The
memorandum further advised that if the officer accepted promotion and
Federal recognition was not extended in the next higher grade, he would be
transferred to the USAR on the day following the date of termination of
Federal recognition, in his current grade.

11.  The MIARNG published Orders Number 309-010, dated 5 November 1999,
separating the applicant from the MIARNG, as a first lieutenant, effective
28 October 1999, and transferring him to the USAR.

12.  The NGB published Special Orders Number 235AR, dated 13 December 1999,
withdrawing the applicant's Federal Recognition and transferring him to
the USAR effective 28 October 1999.

13.  The ARPERSCOM, St. Louis, issued the applicant a promotion memorandum,
dated 24 November 1999, announcing his promotion to captain with a
promotion effective date and date of rank of 30 October 1999, the date
after withdrawal of his Federal recognition and his transfer to the
Individual Ready Reserve (IRR) on 29 October 1999.

14.  The Ohio (OH) ARNG published Orders 037-102, dated 24 February 2000,
appointing the applicant in the OHARNG, as a captain, effective 18 February
2000.

15.  The ARPERSCOM, St. Louis, published Orders Number C-03-007573, dated
14 March 2000, releasing the applicant from the USAR Control Group
(Reinforcement) for appointment in the OHARNG, with an effective date of
18 February 2000.

16.  The NGB published Special Orders Number 33AR, dated 24 March 2000,
transferring the applicant from the USAR to the IAARNG[INARNG-sic], as a
captain, effective 18 February 2000.

17.  The Indiana (IN) ARNG published Orders Number 326-006, dated
21 November 2000, appointing the applicant in the INARNG, as a captain,
effective 17 November 2000.

18.  The OHARNG published Orders Number 237-158, dated 8 December 2000,
transferring the applicant from the OHARNG to the INARNG, as a captain,
with an effective date of 17 November 2000.
19.  The NGB published Special Orders Number 13AR, dated 16 January 2001,
announcing the inter-state transfer of the applicant from the OHARNG to the
INARNG, with an effective date of 17 November 2000.

20.  The INARNG published Orders Number 283-031, dated 10 October 2001,
transferring the applicant to a commander position, with an effective date
of 1 December 2001.

21.  The INARNG published Orders Number 305-087, dated 1 November 2002,
transferring the applicant to an instructor position, with an effective
date of 1 November 2002.

22.  The INARNG published Orders Number 049-009, dated 18 February 2003,
separating the applicant from the INARNG, as a captain, and transferring
him to the USAR Control Group (Reinforcement), effective 28 February 2003.

23.  The NGB published Special Orders Number 92AR, dated 8 April 2003,
withdrawing the applicant's Federal Recognition and transferring him to the
USAR, as a captain, with an effective date of 28 February 2003.

24.  The applicant entered on active duty effective 1 December 2003 and was
released from active duty effective 11 February 2005.

25.  Based on the completion of the required 7 years maximum TIG, his
promotion eligibility date for major is 29 October 2006.

26.  In an advisory opinion, dated 19 July 2006, the Chief, Personnel
Division, Departments of the Army and the Air Force, NGB, reiterated the
applicant's requests and contentions.  The Personnel Division official
stated the applicant alleged that he received his commission in the
Regular Army OCS at Fort Benning on 18 January 1991.  The applicant also
stated that he was in the ARNG when promoted to captain on 29 October
1999.  The applicant also alleged that he received a promotion selection
letter with a PED as 26 June 1999, but he was not in a captain's position
at the time of selection.  The applicant served in the ARNG until 11
March 2003, due to his requested transfer to the USAR for deployment to
Iraq.  The USAR PMO advised the applicant that based on his record he
should have been boarded for promotion to major and that he was one year
behind his peers.

27.  The Personnel Division official further stated that the request was
being returned without action.  The applicant was transferred from the
MIARNG to the USAR on 29 October 1999, as a first lieutenant and was
promoted to captain while assigned to the USAR.  The NGB has no
jurisdiction on recommending adjustment to his captain date of rank.  The
NGB, Personnel Policy and Readiness Division concurred with the Personnel
Division.

28.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 21 July 2006.  In his rebuttal, dated
9 August 2006, the applicant stated that he served in the USAR until 7
February 1997 and requested transfer to the IAARNG after being promoted
to first lieutenant.  After serving in the IAARNG, he transferred to the
IRR and he should have been promoted to captain in January 1999.  The US
Congress was in a budget crisis at this time.  In February 1999, he
transferred from the IRR to join the MIARNG and was transferred back to
the IRR on 28 October 1999.  He was promoted to captain on 29 October
1999, while in the IRR.  He was automatically promoted because he was in
the IRR.

29.  The applicant also stated that the NGB's response stated that he was
not in a captain's slot.  This is incorrect.  The enclosed promotion
memorandum stated, "No acceptance or oath of office is required."  He
never declined nor delayed his promotion to captain.  He then requested
transfer to the OHARNG from the IRR.  After serving in the OHARNG, he
requested an inter-state transfer to the INARNG, 76th Brigade.  He never
served continuously in the ARNG from 1997 to 2003 as stated in the NGB
response.  This statement by the NGB is not correct and egregious.  The
NGB stated that it had no jurisdiction on recommending adjustment to his
date of rank to captain.  The applicant further stated that he is behind
his year group if his date of rank to captain is not adjusted.  The
applicant enclosed a copy of promotion memorandum, dated 24 November
1999.

30.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve and ARNG officers.  This regulation specifies that
completion of 5 years maximum time in grade as a first lieutenant is
required before promotion to captain.   An officer selected for the first
time for promotion to the next higher grade may be promoted on or before
the date that he/she completes the maximum years of service.  A unit
officer must be serving in a position requiring the higher grade or
assigned to the IRR.  Officers not promoted and who transfer after their
PED are promoted effective on the day after transfer to a non-unit status.

31.  Army Regulation 135-155 also specifies and the completion of 7 years
MTIG as a captain is required before promotion to major.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to adjustment to his date of rank for captain to 18 January 1999.
He has not shown error, injustice, or inequity for the relief he now
requests.
2.  The applicant's contentions have been noted.  Based on his selection by
the 1997 RCSB, while a member of the IAARNG, he was eligible for promotion
to captain with an effective date of 16 January 1999.  However, it appears
that the IAARNG did not promote the applicant to captain at that time
because he was not assigned to a captain's position.  The applicant was
subsequently appointed in the MIARNG and was also not promoted to captain
because he was not assigned to a captain's position.

3.  The evidence shows the applicant was transferred to the IRR on 29
October 1999 and appropriately promoted to captain on 30 October 1999, the
date after his transfer.  The applicant has not submitted sufficient
evidence to show that he was assigned to a captain's position at the time
of his selection for promotion.  The applicant's selection by the 1997 RCSB
would not automatically lead to his promotion to captain in the IAARNG.  It
appears that the applicant opted to continue to serve in the IAARNG as a
first lieutenant and did not request an earlier transfer to the IRR for
promotion to captain.  Therefore, it is concluded that the applicant’s
promotion effective date and date of rank to captain was correctly
established as the day after his transfer to the IRR.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 October 1999, the date of his USAR
promotion to captain or 26 February 2002, the date of his Reserve
promotion to captain; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 29 October
2002 or 25 February 2005, respectively.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JM___  __RCH__  _SWF___  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 concerning an earlier date
of rank for captain.

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 an
insufficient basis to waive the statute of limitations for timely filing or
for correction of the records of the individual concerned.




                                  ____Jeanette McCants______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013113                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|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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