RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20050016946


      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. John J. Wendland, Jr.         |     |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, correction of his lieutenant colonel
(LTC) date of rank (DOR) and promotion eligibility date (PED) from 26
January 2003 to 13 January 2003.

2.  The applicant states, in effect, that he was in a LTC (O-5) position
both prior to and on the date the board results were approved.  However, he
adds that his higher headquarters claims he was not in a LTC/O-5 position
until 26 January 2003 and used that date as his PED and DOR for promotion
to LTC/O-5.

3.  The applicant provides a copy of page 14 of the Regional Level
Application Software (RLAS), Unit Manning Report (UMR) for 3rd Corps
Support Command (COSCOM), Des Moines, Iowa, dated 28 February 2002, and a
DA Form 67-9 (Officer Evaluation Report (OER)) for the period 7 June 2002
through 25 April 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that on 9 July 1982 he
enlisted in the U.S. Army Reserve (USAR) in the grade of rank of private
first class/pay grade E-3, for a period of 6 years.  On 3 September 1982 he
was promoted to cadet/pay grade E-5 and attended Senior Reserve Officers'
Training Corps (SROTC).  He was appointed a commissioned officer in the
USAR effective
23 May 1984 and was subsequently awarded military occupational specialty
(MOS) 15A (Aviation General).

2.  The applicant's military service records show that his unit was
mobilized and he was ordered to active duty on 9 February 2003 in support
of Operations Enduring Freedom and Iraqi Freedom.  He was honorably
released from active duty on 27 March 2004.

3.  In support of his application the applicant provides a copy of page 14
of the RLAS UMR for 3rd COSCOM, dated 28 February 2002, which shows that
the applicant was slotted in position 5720 (Material Management Officer),
paragraph 021/line 01, position description (i.e., duty MOS) 15D00,
authorized grade O-5, was qualified for that position, and that he was
assigned to the position on 5 April 2002.  The DA Form 67-9 (OER) covering
the period 7 June 2002 through
25 April 2003 shows, in pertinent part, that the applicant was serving in
the rank of LTC as Aviation Material Manager in his designated
specialty/position area of concentration (AOC) 15A.  This document also
shows, in pertinent part, that the applicant's rater, COL R______ A.
L_____, Deputy Chief of Staff, 3rd COSCOM, completed the rater portion of
the OER and authenticated the document on       28 April 2003.

4.  In connection with the processing of this case, the Board requested and
received an advisory opinion from the Chief, Special Actions Branch, Office
of Promotions, Reserve Components, U.S. Army Human Resources Command (USA
HRC), St. Louis, Missouri.  The advisory official stated that the applicant
was promoted to major (MAJ)/pay grade O-4 on 25 February 1996 and that
promotion to LTC requires 7 years time in grade; therefore, the applicant's
PED was 24 February 2003.  This official added that the applicant was
considered and selected for promotion to LTC (O-5) by the 2002 Department
of the Army (DA) Reserve Components (RC) Selection Board as a Troop Program
Unit (TPU) officer, the board results were approved on 13 January 2003, and
released on
4 February 2003.

5.  The USA HRC advisory official provides a copy of a promotion memorandum
issued by the Chief, Office of Promotions, RC, U.S. Total Army Personnel
Command, St. Louis, Missouri, dated 4 February 2003, that authorized the
applicant’s promotion to LTC with a PED of 24 February 2003.  This document
shows that it advised the applicant that he must remain in an active
status, have a current security clearance, be medically qualified for
retention and meet the standards of the Army body composition program in
Army Regulation 600-9 (The Army Weight Control Program), and otherwise meet
the promotion eligibility criteria set forth in Army Regulation 135-155
(Army National Guard and U.S. Army Reserve - Promotion of Commissioned
Officers and Warrant Officers Other Than General Officers).  This document
also advises the applicant, in pertinent part, "[i]f you are assigned to a
troop program unit (TPU), you must be assigned to a duty position
authorized a grade equal to or higher than the grade in which selected."
It concludes by informing the applicant that his servicing headquarters
would notify him of any further actions required.

6.  The USA HRC advisory official provides a copy of a memorandum issued by
the Assistant Adjutant, Headquarters, U.S. Army Reserve Command (USARC),
Fort McPherson, Georgia, dated 21 March 2003, that informed the applicant
of his promotion to LTC in the USAR, effective 26 January 2003.  This
document states, in pertinent part, "[t]his promotion is not valid and will
be revoked if you are not in a promotable status on the effective date of
promotion."  The advisory official also provides a copy of a USARC Form 56-
R (Promotion Qualification Statement) that was signed by the applicant's
commander on 14 February 2003. The advisory official states that the
applicant's DOR was based on information on the form that indicates he was
assigned to the higher grade (i.e., authorized O-5) position on 26 January
2003.
7.  The advisory official provides a copy of Headquarters, U.S. Army
Reserve Personnel Command (AR-PERSCOM), St. Louis, Missouri, memorandum,
dated 11 February 2003, subject:  Notification of Suspended Promotion
Status.  This document states, in pertinent part, "[y]ou were recommended
for promotion; however, the database indicates you do not meet
requirements.  Promotion action could not be completed due [to] the
following disqualification(s):"  This document also indicates, in pertinent
part, "[y]ou are not assigned to a higher grade position." and "[y]ou do
not possess a current date for the Army Physical Fitness Test (APFT) within
the period required by AR 350-41, (will expire April 2003)."

8.  The advisory official opines that, despite documents the applicant
provides in support of his application, "…there is no indication of this
documentation being used as supporting backup by USARC at Fort McPherson at
the time of the promotion order being issued by USARC."  Therefore, the USA
HRC advisory official concludes that the earliest DOR the Office of
Promotions, RC, can award is 26 January 2003 and recommends denial of the
applicant's request.

9.  On 6 April 2006, the applicant was provided a copy of the USA HRC
advisory opinion in order to have the opportunity to respond.  On 27 April
2006, he provided his rebuttal to the advisory opinion, along with a
memorandum from Ms. R______ J. M______, Human Resources Officer (Military),
U.S. Army
89th Regional Readiness Command, Wichita, Kansas, dated 18 April 2006, and
a letter from Colonel R______ A. L____, Chief of Staff, V-Corps (Rear),
dated
15 April 2006.  The applicant states, in effect, that the advisory opinion
is incorrect in the presentation of some of the facts in this case.  The
applicant asserts that he was slotted in position 5720, paragraph 021/line
01 (an O-5 position) in April 2002 and remained in that position until 5
December 2006.  He states that the UMR and OER he submitted in support of
his application provides evidence of this.  He also states that,
unfortunately, his unit is currently unable to recall a UMR from the period
September 2002 through April 2004 that would lend additional support his
claim. However, the applicant offers information concerning the unit's pre-
mobilization operations and unit readiness processing that occurred in
January 2003, which resulted in the unit's personnel and administrative
staff moving and re-slotting personnel.  He also adds that he believes it
was during this time that he may have been incorrectly moved from the O-5
aviation position to an O-4 procurement position.

10.  In support of his argument, the applicant provides a memorandum from
his human resources (HR) officer which confirms that the applicant was
assigned to the 3rd COSCOM on 24 January 2002 and was slotted in position
5720, paragraph 021/line 01; a 15D, Material Management Officer, O-5
position.  The HR officer also confirms that during the unit's
mobilization, the applicant was re-slotted into position 5714, paragraph
20/line 02, which is a 51C, Procurement Officer, O-4 position.  She adds
that, on 26 January 2003, the applicant was returned to his original
position as the Material Management Officer, an O-5 position.  The HR
officer concludes by stating it is up to the unit to attest to the validity
of the UMR position change transactions; however, adds that she can attest
to the fact that it was very chaotic during the short-notice mobilization
of the 3rd COSCOM in January 2003.

11.  In further support of his argument, the applicant provides a letter
from the colonel serving as Chief of Staff V-Corps (Rear) which states
that, at the time, he was the COSCOM's Support Operations Officer and the
applicant's rater from January 2002 until April 2003.  The colonel also
attests to the fact that the applicant was assigned to the unit in January
2002 and filled the Aviation Material Management Officer position (i.e.,
position 5720, paragraph 021/line 01), an O-5 slot.  He also states that
several UMR and readiness reports were submitted during the unit's pre-
deployment operations in January 2003 and that it is feasible that the
applicant was inadvertently moved or incorrectly slotted in another
position during that period.  However, he adds that he is not aware of, nor
did he authorize, the movement of the applicant from his authorized
position to another position.  The applicant's former rater concludes by
recommending the Board approve the correction of the applicant's DOR from
26 January 2003 to
13 January 2003.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers) prescribes policy and
procedures used in the selection and promotion of commissioned officers of
the Army National Guard of the United States (ARNGUS) and the commissioned
and warrant officers of the USAR.  Table 2-1 (Time in Grade Requirements
for Commissioned Officers other than Commissioned Warrant Officers) of this
regulation outlines the service requirements for promotion and indicates
that for promotion to LTC the maximum years in the lower grade (MYIG) is 7
years.

13.  Army Regulation 135-155, paragraph 4-21 (Effective dates), provides,
in pertinent part, for the promotion of unit officers and states that the
effective date and date of promotion will be no earlier than the approval
date of the board, the date of Senate confirmation (if required), or the
date the officer is assigned to the position, whichever is later.

14.  Army Regulation 135-155, Chapter 4 (Processing Selection Board
Recommendations), Section III (Dates of Promotion), provides the procedures
for computing promotion effective dates of all RC officers.  It states, in
pertinent part, that antedating of the effective date of promotion will not
entitle a RC officer to increased pay and allowances.  However, it does
establish that the DOR is the date the officer meets the eligibility
criteria for promotion to the next higher grade and that an officer’s PED
will become their DOR upon promotion and this date will be used to
establish the relative seniority for officer’s holding the same rank.
Finally, it states that the DOR will be used to establish the officer’s PED
to the next higher grade.

15.  Title 10 of the United States Code, section 14304 (10 USC 1434),
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.  This provision of the
law establishes the MYIG for MAJ being promoted to LTC as 7 years.

16.  A separate provision of the law, 10 USC 12203, establishes, in effect,
that
RC officers on a promotion list will be promoted when the report of the
selection board is approved by the President.  Therefore, under this
provision of the law, the promotion effective date is the date the list is
signed by the President.  It is also codified in the law that, in effect,
if a RC officer’s promotion is adjusted to reflect a date earlier than the
actual effective date of promotion, for example a DOR adjustment based on
MYIG, this does not entitle them to additional pay or allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his PED and DOR for LTC should
be changed from 26 January 2003 to 13 January 2003 because he was slotted
in an authorized LTC/O-5 position both prior to and on the date the board
results were approved.  He also contends, in effect, that for reasons which
are not completely clear, when his unit mobilized in January 2003 he was
administratively moved into a MAJ/O-4 position and then, on 26 January
2003, moved back to his original LTC/O-5 position.  Consequently, he was
promoted to LTC with a promotion effective date and date of rank of 26
January 2003 rather than
13 January 2003.

2.  The evidence of record confirms the applicant was promoted to LTC by
the 2002 DA RC Selection Board, which was approved on 13 January 2003, and
that he was given a promotion effective date of 26 January 2003.  The
evidence of record also shows that the advisory office (i.e., Office of
Promotions, RC) acknowledges there is no indication the documentation
provided by the applicant in this case was considered when Headquarters,
USARC (Fort McPherson), issued his promotion order with an effective date
of 26 January 2006.

3.  Notwithstanding the recommendation given in the advisory opinion
provided in this case, the Board finds that the applicant’s claim has
merit.  In this regard, the Board determined that the documentary evidence
the applicant provided, both in his application and in rebuttal, offers
significant weight to the applicant's contention that he was assigned to an
authorized O-5 position on 13 January 2003 and that he was fully qualified
for promotion on that date.  The Board also notes that the applicant’s
actions did not contribute to the confusion relating to the date he was
assigned to an authorized O-5 position, but instead finds the discrepancy
to be the result of administrative actions taken by personnel and
administrative support staff during the unit's pre-mobilization operations
and unit readiness processing.  Therefore, the Board concludes that a
preponderance of the evidence of record shows that the applicant was in an
authorized O-5 position at the time the results of the 2002 DA RC Selection
Board were approved on 13 January 2003.

4.  The Board notes that Headquarters, AR-PERSCOM, St. Louis, Missouri,
memorandum, dated 11 February 2003, subject:  Notification of Suspended
Promotion Status, indicates, in pertinent part, "[y]ou do not possess a
current date for the Army Physical Fitness Test (APFT) within the period
required by
AR 350-41. (will expire April 2003)."  However, for the period in question,
the applicant did meet this requirement in that the APFT he was
administered and passed in April 2002 was valid through April 2003.
Consequently, the Board finds that the matter of promotion ineligibility
based on the date of the applicant's APFT is not germane to the applicant's
promotion eligibility (i.e., in January 2003) in this particular instance
and case.  Therefore, in view of the foregoing, the applicant was fully
qualified for promotion in January 2003.

5.  Although the Board finds a basis to support adjusting the applicant’s
LTC DOR and PED, and it concludes that this action would be appropriate, by
law, this does not entitle him to a change in the effective date of his
promotion, or to any back pay or allowances.

6.  In view of the foregoing, the applicant’s records should be corrected
to show he was promoted to LTC with a PED and DOR of 13 January 2003.
BOARD VOTE:

__SLP___  __RML__  __JGH___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing he was promoted to lieutenant colonel/pay grade O-5 with a
promotion eligibility date and date of rank of 13 January 2003.




                                  ____Shirley L. Powell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016946                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20040327                                |
|DISCHARGE AUTHORITY     |AR 600-8-24, Paragraph 2-27a            |
|DISCHARGE REASON        |Completion of Required Service          |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.0500.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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