RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      15 August 2006
      DOCKET NUMBER:  AR20050014430


      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. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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, back pay, for the period 9 June 1994
through 7 August 1999, in the grade of major.

2.  The applicant states, in effect, his records are in error or unjust
because the Standby Advisory Board (STAB) proceedings have not been
fulfilled.  He also states that after being twice passed over for the rank
of major, the Department of the Army STAB, which convened on 29 October
1997, considered him for promotion to the next higher grade, using the
criteria established for the mandatory board which met in 1994.  The result
was their recommendation for his promotion to major with a date of rank of
9 June 1994.  In the STAB proceedings, dated 26 February 1998, which had a
suspense date of 28 April 1998, paragraph 3 clearly established a
settlement of monies due through the Defense Finance and Accounting Service
in Denver, Colorado.  He never received such settlement.  It is his opinion
that due to material error or injustice made by the 1994 board, he was
entitled to receive the difference in pay from the rank of captain to the
one of major, for a period of 5 years and 2 months, from the date of rank
established by the STAB, 9 June 1994, to the date he was promoted to major,
7 August 1999.

3.  The applicant provides copies of his Army Board for Correction of
Military Records (ABCMR) Proceedings, his promotion consideration
memorandum, his promotion notification letter and memorandum, in support of
his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 August 1999, the effective date of his promotion to major.
The application submitted in this case is dated 19 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 military records show he was appointed in the United
States Army Reserve (USAR), as a second lieutenant, effective 11 June 1979.
4.  He entered on active duty effective 29 July 1979 and was promoted to
first lieutenant effective 10 March 1981.  He was released from active duty
effective 11 November 1983 and transferred to the USAR Control Group
(Reinforcement).

5.  He was reassigned to a troop program unit (TPU) effective 28 January
1992.  He was promoted to captain effective 10 June 1986.

6.  He was considered and not selected for promotion to major by the 1993
and 1994 Reserve Components Selection Boards (RCSB).

7.  He was reassigned to the Retired Reserve effective 24 April 1998, based
upon his two non-selections for promotion.

8.  He was issued a promotion consideration memorandum, dated 27 July
1998, showing his selection for promotion to major by a STAB under the
1994 year criteria.  The memorandum advised the applicant that upon final
processing, a promotion letter would be forwarded to him with a date of
rank of 9 June 1994.

9.  On 5 November 1998, his transfer to the Retired Reserve was revoked and
he was returned to an active Reserve status.

10.  He was issued a promotion memorandum, dated 13 October 1999, showing
his promotion to major with a promotion effective date of 7 August 1999 and
date of rank of 9 June 1994.  The memorandum advised that his pay and
allowances would be effective on the promotion effective date (7 August
1999).  The time in grade for promotion to the next grade would be computed
from the date of 9 June 1994.

11.  In an advisory opinion, dated 18 January 2006, the Chief, Special
Actions Branch, Office of Promotions, Reserve Components, Human Resources
Command (HRC) – St. Louis, Missouri, stated that the applicant was non-
selected by the 1993 and 1994 RCSBs.  The applicant was identified to a
special selection board (SSB) that adjourned on 29 October 1997 under the
1994 criteria and was selected for promotion to major.  His captain date of
rank was 10 June 1986 and based on the 7 years time in grade his promotion
eligibility date (PED) for major was 9 June 1993.  The SSB results were
released on 13 July 1998.  At the time of his selection, a select letter
was issued to the applicant stating his security clearance needed updating.
 The applicant was a TPU officer and the Office of Promotions, Reserve
Components, was not the promotion authority for issuing the applicant's
promotion orders.  Previous information on the database
reflects the applicant was transferred to the Retired Reserve on 24 April
1998 and later, based on his selection for promotion, his transfer was
revoked on 5 November 1998.

12.  The Office of Promotions, HRC official, also stated that TPU officers
must have a valid security clearance, valid physical examination, and valid
Army Physical Fitness Test (APFT), and must be in the higher grade position
(a major's position).  The Office of Promotions was not the issuing
promotion authority at the time information was obtained by the previous
TPU approval authority and the applicant was transferred to the 65th
Regional Support Command for the higher graded position and given a
promotion effective date of 7 August 1999 (the date of his tape test).
Based on these facts, it was recommended the applicant's request be denied.

13.  The advisory opinion was forwarded to the applicant for
acknowledgement/
rebuttal on 24 February 2006.  He did not respond.

14.  Army Regulation 135-155, prescribes the policies and procedures for
the promotion of Reserve officers.  This regulation specifies that an
officer who twice fails to be selected for promotion to the grade of major
will not be considered again for promotion.  An officer whose removal from
active Reserve status is required by law, for failure to be selected for
promotion, must be removed within the prescribed time limits.

15.  Army Regulation 135-155, specifies that officers selected by a
STAB/SSB are eligible for the same date of rank that they would have
received by the original board (approval date) in which the error occurred.
 Paragraph 4-19.e. specifies that officers selected by a mandatory board or
STAB may have a PED that is prior to the adjourning date of the board.  The
officer's effective date would be the adjourning date of the board by which
recommended or the adjourning date of the STAB criteria by which
recommended.  The officer's PED becomes the date of rank.  Promotion for
TPU officers may only be effective upon positioning in the higher grade or
assignment to the Individual Ready Reserve or the Individual Mobilization
Augmentation.  An officer is promoted, after selection, if all
qualifications for promotions are met.  When an officer does not meet the
qualification for promotion, the promotion effective date and date of rank
may be advanced to the date qualifications are met (i.e., in an active
Reserve status, possess a valid security clearance, a valid physical
examination, and valid APFT).

16.  Army Regulation 135-155, specifies that the PED is the date the
officer meets the eligibility criteria for promotion to the next higher
grade. The PED may be advanced to the earliest date eligible for promotion
in the USAR.  The date of rank is the date the member actually was promoted
to a specific grade.  The effective date of promotion is the date the
officer is eligible for pay and allowances in the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to back pay, for the period 9 June 1994 through 7 August 1999, in
the grade of major. He has not shown error, injustice, or inequity for the
relief he now requests.

2.  The applicant's contention that his records are in error or unjust
because the STAB proceedings have not been fulfilled has been noted.
However, the applicant was considered for promotion to major by a STAB
under the 1994 criteria.  He was selected for promotion with a projected
date of rank of 9 June 1994, provided he met all other qualifications for
promotion at the time.

3.  The applicant, as a TPU officer, was required to meet all promotional
qualifications of having a valid security clearance, valid physical
examination, valid APFT, and assignment to a higher graded position.  The
Office of Promotions verified that the applicant was transferred to the
65th Regional Support Command for the higher graded position and given a
promotion effective date of 7 August 1999, the date of his tape test
(physical).  Therefore, this was the date he met all other qualifications
for promotion.

4.  Based on the fact that the applicant's promotion did not become
effective until 7 August 1999, this was the earliest date he was entitled
to receive pay and allowances.  Pertinent regulations clearly show that
promotions may only become effective (pay and allowances) the date all
qualifications are met and the date of rank is the date the officer
actually was promoted to a specific grade.  The applicant has not
satisfactorily shown that he met all the requirements for promotion to
major prior to 7 August 1999.  Therefore, he is not entitled to an earlier
date of rank for major and entitlement to back pay and allowances.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 August 1999, the effective date of
his promotion to major; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 6 August 2002.
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

__SLP___  __RML__  _JGH___  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.




                                  _____Shirley L. Powell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014430                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.00                                  |
|2.                      |131.04                                  |
|3.                      |131.05                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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