RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      18 July 2006
      DOCKET NUMBER:  AR20050016424


      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. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Ernestine Fields              |     |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 to 1 March 1999 and promotion consideration to major by a special
selection board (SSB).

2.  The applicant states, in effect, that he should be retroactively
promoted to the rank of captain to correct the injustice to his military
records.  Due to no fault of his own, he was not properly promoted to the
rank of captain by the Oregon Army National Guard (ORARNG).  This promotion
did not become apparent until October 2004, when he received notification
that he was going before a Department of Army (DA) Selection Board for the
rank of major.  He was advised that he was not qualified for that board
because the ORARNG appointment Orders No. 95 AR, dated 1 April 2002, were
invalid because he did not have Federal recognition orders.  The record
assistant indicated that the Regular Army (RA) promotion Order No. 49-043,
dated 18 February 1999, was invalid because he was discharged from the RA
before the effective date of the promotion.

3.  The applicant also states that upon awareness of these findings, he
attempted to resolve the issue through all administrative channels.  The
ORARNG Deputy Chief of Staff for Personnel (DSCPER) was unable to resolve
the issue, stating that the National Guard Bureau (NGB) Officer Personnel
Management was unwilling to grant him Federal recognition because he had
not been boarded by the state.  He believes this to be irrelevant since he
was boarded by both the RA and the United States Army Reserve (USAR)
Control Group and promoted by each agency to the rank of captain.

4.  He further states that he was deployed for 13 months in support of
Enduring Freedom and subsequently redeployed in support of Operation Noble
Eagle III from 15 March 2003 to 21 April 2004.  Correction of his date of
rank is essential because he was scheduled for the next DA Selection Board
for major which convened in March 2006.

5.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); Total Army Personnel Command Order
No. 49-043; NGB Special Orders No. 152 AR; his promotion memorandum for
captain; ORARNG Orders 053-002; NGB Special Orders No. 95 AR; a letter from
the Office of the Inspector General, ORARNG; a memorandum for record from
the Chief, DSCPER Plans and Actions Branch, ORARNG; and a memorandum from
the Office of The Adjutant General (TAG), ORARNG, in support of his
requests.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on 1 March 1999, the date of his active duty promotion to captain and 26
February 2002, the date of his Reserve promotion to captain.  The
application submitted in this case is dated 20 October 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 that he was appointed in the
USAR, as a second lieutenant, effective 22 December 1994, with prior
enlisted service.  He entered on active duty effective 22 February 1995 and
was promoted to first lieutenant effective 27 February 1997.

4.  He was released from active duty, as a first lieutenant, effective 10
February 1999, and transferred to a Reserve troop program unit.

5.  He was appointed in the Idaho (ID) ARNG, as a first lieutenant,
effective 11 February 1999.

6.  The Promotions Branch, Total Army Personnel Command, Arlington,
Virginia, published Order No. 49-043, dated 18 February 1999, for promotion
of the applicant to captain, with an effective date and date of rank of
1 March 1999.

7.  He was separated from the IDARNG, as a first lieutenant, effective 1
July 2000 and transferred to the USAR Control Group (Reinforcement).

8.   The NGB published Special Orders No. 152 AR, dated 6 June 2001,
transferring the applicant from the USAR to the ORARNG and extending him
Federal recognition as a first lieutenant, effective 17 November 2000.  He
was appointed in the ORARNG effective 21 November 2000.

9.  The Total Army Personnel Command, St. Louis, Missouri, issued a
promotion memorandum, dated 14 February 2002, indicating the applicant's
selection for promotion to captain by a Reserve promotion board with a
promotion effective date and date of rank of 26 February 2002.

10.  Based on the completion of the required 5 years maximum time in grade
(TIG) in the USAR, his promotion eligibility date (PED) for captain was
26 February 2002.

11.  Based on the completion of the required 7 years maximum TIG, his PED
for major is 25 February 2009.

12.  The ORARNG published Orders No. 053-002, dated 22 February 2002,
promoting the applicant to captain effective 20 February 2002[sic].

13.  The NGB published Special Orders No. 95 AR, dated 1 April 2002,
amending the rank in which he was extended Federal Recognition to read
"captain".

14.  In a letter, dated 17 August 2005, the Office of the Inspector
General, ORARNG, responded to the applicant's request concerning a
correction to his date of rank for captain.  The Office of the Inspector
General official advised the applicant to apply to the Army Board for
Correction of Military Records (ABMCR) to resolve the matter.

15.  In a memorandum for record, dated 30 September 2005, the Chief, DSCPER
Plans and Actions Branch, ORARNG, stated, in effect, that the applicant was
promoted by the US Army after being separated.  The applicant was promoted
by the USAR upon reaching the maximum TIG as a first lieutenant.  Both of
these actions were taken after he left the appropriate service. The ORARNG
then compounded the process by not forwarding the promotion packet to the
NGB but instead, amended the appointment based on erroneous promotion
documents.  The NGB accepted these documents and added to the error.

16.  The DSCPER official listed the possible courses of action for the
applicant as: 1)  the applicant could request an initial date of rank for
captain of 1 March 1999, as promoted by the US Army, and if the action was
approved, the applicant would have been reviewed by the recent mandatory
board.  The applicant met all requirements to be promoted to major and most
likely would have been selected and recommended for promotion this past
March 2005; or 2) the applicant could request an initial date of rank for
captain of 26 February 2002, as promoted by
the USAR; or 3) the applicant could request his previous appointment orders
be revoked and he be reappointed as a first lieutenant in the ORARNG, as
initially appointed.  The DSCPER recommended the applicant follow the first
course of action.

17.  In a memorandum, dated 1 October 2005, an Office of TAG, ORARNG
official concurred with the recommendation that the applicant retain his
current rank and date of rank for captain effective 1 March 1999.  The
official also recommended the applicant for promotion to major based on his
current date of rank.  The official stated that the applicant was prepared
and should have been boarded by the mandatory DA board that convened on 8
March 2005; however, the applicant was pulled from the board due to the
identified discrepancy.

18.  In an advisory opinion, dated 3 April 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 that in accordance with Army Regulation 135-155, chapter 2, states
that to be eligible for selection, an ARNG and USAR officer who meets the
eligibility requirements must be properly in an active status and
participating satisfactorily in Reserve training.  For promotion purposes,
an officer is deemed to be a satisfactory participant and in full
compliance with the commander's instructions.  In the case of the
applicant, he was selected for promotion to captain by the RA to be
effective 1 March 1999, he was transferred to the USAR on 10 February 1999,
as a first lieutenant and further transferred to the IDARNG on 11 February
1999, as a first lieutenant.

19.  The official also stated the National Guard (NG) Regulation 600-100,
chapter 8, states that the promotion authority for all ARNG officers is the
State TAG.  If the TAG chooses not to promote an officer, he or she is not
obligated to do so.  Army Regulation 15-185, chapter 2, paragraph 2-4,
states that the applicant must file an application within 3 years after an
alleged error or injustice is discovered or reasonably should have been
discovered.  The ABCMR may deny an untimely application or may excuse
untimely filling in the interest of justice.  The applicant should have had
his rank corrected by the USAR when he was transferred from the IDARNG to
the USAR on 1 July 2000.

20.  The official further stated that the NGB, Personnel Division,
recommended that the applicant's date of rank for captain remain as 26
February 2002, due to the fact that was the date he was selected by a DA
selection board.  Per coordination with the NGB, DA Board record section,
the applicant was not
eligible to appear before the major board in March 2006, based on his date
of rank.  The NGB, Personnel Policy and Readiness Division concurred with
the Personnel Division recommendation.  That office stated that since the
applicant has 4 years TIG, he is eligible for a unit vacancy promotion, if
the TAG feels he is qualified and deserves to be promoted.

21.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 5 April 2006.  In his rebuttal, dated 30
April 2006, the applicant again stated that he believes that he was
selected for promotion to captain by a promotion board while serving in the
RA as indicated by DA Order Number 49-043.  A combination of several
administrative errors based on the lack of knowledge on the part of the
unit and the state administrators has lead to this ABCMR request.  He also
stated that upon discovery of the injustice he took immediate action as
indicated by the memorandums attached to his original ABCMR request.  Due
to the administrative error in his date of rank, he has been removed from
both the 2005 and 2006 mandatory DA boards for promotion to major.
Additionally, adjusting his date of rank from 1 March 1999 to 26 February
2002 would cause financial hardship because he received the appropriate
back pay for service.  He is currently pending a unit vacancy promotion to
the grade of major.

22.  Army Regulation 600-8-29 prescribes the policies and procedures for
the promotion of RA officers.  This regulation specifies that an officer
who is on a promotion list and is removed from the active duty list (ADL)
prior to the effective date of promotion shall not be promoted from the ADL
promotion list.  A subsequent return to the ADL does not warrant a return
to promotion list status held prior to release from active duty.
Individuals listed should not assume that the structure of a list or the
presence of a name on the list constitutes a firm forecast for promotion.
Promotions would be announced by Headquarters, HRC - Alexandria orders.
HRC – Alexandria will remove from the list those officers who separate
prior to being promoted from the list.

23.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of USAR and ARNG officers.  This regulation specifies that an
active duty officer, who is selected for promotion but removed from the ADL
and placed in an active Reserve status prior to promotion, is not eligible
for that promotion and that officer will be placed on the Reserve Active
Status List (RASL) and considered for promotion by a Reserve promotion
board.


24.  This regulation further specifies that an officer will not be
considered for a Reserve promotion unless in an active Reserve status for 1
year no later than the date a respective RCSB convenes to be considered by
that RCSB for a Reserve promotion and must meet the TIG requirements.  An
officer is promoted after selection, if all qualifications are met.

25.  Army Regulation 135-155 also specifies that completion of 5 years
TIG as a first lieutenant is required before promotion to captain and the
completion of 7 years MTIG as a captain is required before promotion to
major.  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.  Officers in the grade of captain may be
eligible for promotion consideration to major by a Position Vacancy Board
(PVB) upon completion of 4 years minimum TIG.

26.  Army Regulation 135-155 further specifies that promotion
consideration/ reconsideration by a SSB may only be based on erroneous non-
consideration or material error, which existed in the records at the time
of consideration.

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 1 March 1999.
The applicant was not in an active duty status on the ADL on the effective
date of promotion; therefore he was not entitled to promotion to captain at
that time.  He was separated from the ADL on 10 February 1999, prior to
being promoted to captain.

2.  The applicant was placed on the RASL on 1 July 2000 and appropriately
considered by a mandatory board for promotion to the next higher grade on
or before his maximum TIG, based on the completion of the required 5 years
TIG.  He was promoted to captain with a promotion effective date and date
of rank of 26 February 2002.  Based on the completion of the required 7
years MTIG for promotion to major, he is eligible for promotion effective
25 February 2009, providing he meets all other qualifications on that date.


3.  Pertinent regulations specify that promotion to captain and to major
requires completion of 5 and 7 years time, respectively, in the lower
grade, for promotion consideration by a mandatory promotion board.  In
order for the applicant to be promoted to major earlier, he would have to
be considered and selected by a PVB.  Therefore, he does not have a basis
for promotion consideration to major by a SSB.  His contentions do not
demonstrate error or injustice in his removal from the 2005 and 2006
mandatory boards for promotion to major.
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 1 March 1999, the date of his active
duty 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 28 February
2002 and 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

___e____  ___PM___  _EF____  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 or major.

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.




                                  _____Lester Echols_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050016424                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/18                              |
|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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