RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            31 AUGUST 2006
      DOCKET NUMBER:   AR20050017134


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Ms. Karmin Jenkins                |     |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 reconsideration of his previous request for
adjustment of his date of rank to captain to 21 July 2002, or the earliest
appropriate date, as determined by this Board.

2.  The applicant states that the delays in his promotion occurred not only
after his selection by the Department of the Army Reserve Component
Selection Board (RCSB) in November of 2002, but preceding events also
precluded him from receiving a position vacancy promotion prior to that
time.  He states that during the initial consideration of his case, the
National Guard Bureau (NGB), who grants federal recognition for all
National Guard promotions, recommended that he be granted a date of rank of
21 July 2002, the date that he was fully eligible to be promoted to captain
in the Army National Guard.  He states that he is aware that this Board
considered the NGB's recommendation; however, there were additional factors
not provided for consideration in the initial submission to this Board.
The applicant goes on to discuss the number of ways an officer in the ARNG
may be promoted and the constructive credit that was awarded to him for his
years of law school.  He states that Judge Advocate officers serving in the
Florida Army National Guard (FLARNG) are normally advanced in grade under
the position vacancy system for promotions to captain and major.  He states
that while a few officers have been promoted to major by the Department of
the Army selection boards, no other FLARNG first lieutenants have been
promoted other than by position vacancy in the past 20 years.

3.  The applicant states that he met all of the requirements for promotion
under the position vacancy system and he goes on to discuss his education,
his time in grade, his time spent serving in a captain slot, the intent of
his unit, and what he believes to be the delays that precluded his position
vacancy promotion.  He concludes by stating that as a Soldier who entered
military service at an age beyond that of a traditional accession, the time
of promotions are critical in ensuring a successful career and achieving
tenure for retirement.  He states that he is currently at least 1 year
behind his similarly situated peers in the Judge Advocate General's (JAG)
Corps and granting him the additional 11 months of relief with regard to
his date of rank will place him on equal footing with those officers that
entered the military service during the same timeframe.






4.  The applicant provides an email from his former supervisor and rater
dated 24 August 2005; a letter from the State Staff Judge Advocate dated 15
August 2005, attesting to the delays associated with his promotion and
requesting that he be granted full relief in accordance with the NGB's
recommendation; a letter addressed to this Board from the Deputy Chief of
Staff for Personnel, FLARNG, dated 6 September 2005, indicating that but
for the delays that occurred, he could easily have been processed and
approved for a position vacancy promotion; a letter addressed to this Board
from the FLARNG, The Adjutant General, dated 1 November 2005, recommending
that this Board adjust his date of rank to captain to 21 July 2002; and
copies of media articles.

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
AR2004106900, on 4 November 2004.

2.  The applicant was appointed in the FLARNG, JAG Corps, as a first
lieutenant with an effective date of 18 May 2000 and a date of rank of 18
May 1999.  He has an effective date of completion of the Judge Advocate
Officer Basic Course (OBC) of 21 July 2002.

3.  The 2002 RCSB convened on 4 November and recessed on 27 November 2002.
The applicant was considered and selected for promotion and the President
approved the board results on 17 March 2003.

4.  On 17 April 2003, the Chief, Office of Promotions, Reserve Components,
Total Army Personnel Command – St. Louis, Missouri, furnished the NGB
Personnel Center an Eligibility for Promotion Memorandum as notification of
the applicant's selection for promotion to captain by the 2002 RCSB that
adjourned on 27 November 2002.  The memorandum indicated that the
applicant's promotion eligibility date for captain was 17 May 2004.

5.  He was granted Federal Recognition and he was promoted to captain
effective 15 March 2004.






6.  During the processing of the applicant's previous case with this Board,
an Advisory Opinion was obtained from the Chief, Personnel Division,
Departments of the Army and the Air Force, NGB, Arlington, Virginia.  The
chief opined that in accordance with Army Regulation 600-8-29, the error on
sending the applicant's packet late to the promotion board was not the
applicant's fault.  He stated that adjustment of the applicant's date of
rank was coordinated with the Personnel Policy, Programs, and Manpower
Division, who concurred with his office's recommendation to adjust the
applicant's date of rank for captain to 21 July 2002 or to the earliest
appropriate date, as determined by this Board.  In the Advisory Opinion,
the chief recommended that the applicant's request be approved based on the
information that he was able to obtain.

7.  On 4 November 2004, this Board granted partial relief in the
applicant's case by showing that the NGB Orders 58-AR, dated 15 March 2004,
as pertains to the extension of Federal Recognition and promotion of the
applicant to the rank of captain, are null and void; and by showing that
extension of Federal Recognition for promotion to the rank of captain was
issued by the NGB with a promotion effective date and date of rank of 17
July 2003, with entitlement to all back pay and allowances from that date.
The Board denied that portion of his request that pertained to adjustment
of his date of rank for captain to 21 July 2002.

8.  The statements submitted by the applicant in support of his application
all contend that the delay in the applicant's promotion was not his fault,
and that if notification had been received in a timely manner, his name
would have been submitted to a Promotion Vacancy Board (PVB) for a position
vacancy promotion based on his performance and that he would have been
promoted to captain with a date of rank of 21 July 2002.

9.  Army Regulation 135-155, prescribes the policies and procedures for
promotion of Reserve Component officers. The regulation specifies that
officers in the grade of first lieutenant may be eligible for promotion
consideration to captain by a PVB upon completion of 2 years time in grade.
 Promotion to fill authorized troop program unit position vacancies may be
filled through promotion of the best-qualified and geographically available
officer to the grades of captain through colonel.  All unit officers in the
next lower grade must have met the minimum time in grade for promotion to
the next higher grade and be geographically available to serve in the
position for which considered.  Officers selected for PVB, but who are not
promoted, will be deleted from the recommended list and will not be
considered to have failed selection of promotion.

10.  Army Regulation 135-155, also specifies that a first lieutenant will
receive mandatory promotion consideration for promotion to captain upon
completion of 5 years in the lower grade, and that completion of a branch
Officer Basic Course (OBC) is required.  An officer selected the first time
for promotion to the next higher grade may be promoted on or before the
date that he/she completes the maximum service.  Promotion cannot be
effective prior to approval of the respective board by the President.

11.  Army Regulation 600-8-29 prescribes the policies and procedures for
promotion of Regular Army and Army Reserve commissioned officers on the
Active Duty List.  This regulation provides that the law established no
minimum time in grade requirements for a first lieutenant; however, an
officer must have at least 2 years time in grade to be promoted to captain.

DISCUSSION AND CONCLUSIONS:

1.  A thorough review of the previous decision made in the applicant's
case, his supporting documents, and his current submissions reveals that
the action taken by this Board in ABCMR Docket Number AR2004106900, to
grant partial relief, was proper.

2.  The contentions made by the applicant have been noted and his
supporting statements have been fully considered.  His contention that he
would have been eligible for promotion to captain on 21 July 2002, had he
known that he had satisfied the educational requirements, has also been
carefully considered.  Unfortunately, the applicant was not considered for
promotion to captain by a PVB, although he may believe that he should have
been.  He was considered and selected for promotion by the RCSB that
convened on 4 November and recessed on 27 November 2002.  The President
approved the RCSB results on 17 March 2003 and in accordance with Army
Regulation 135-155, his effective date of promotion cannot precede the date
that the President approved the results of the board.

3.  The applicant contends that he would have been promoted to captain on
21 July 2002, had he been considered for promotion by a PVB.  The letters
that the applicant has submitted in behalf of his appeal from the State
Staff Judge Advocate, the Deputy Chief of Staff for Personnel, FLARNG, and
The Adjutant General, FLARNG have been thoroughly considered.  However, he
has provided no evidence or documentation that shows that he would have
been approved for promotion by a PVB, as he was never considered for
promotion by a PVB.  There is no sure way of knowing whether the applicant
would have been approved for promotion by a PVB on the date that he
believes, even though he may have been considered.  The statements
indicating that he would have been promoted are merely speculation at this
point, as he was considered and selected by an RCSB.

4.  Inasmuch as he was considered and selected for promotion by a RCSB, he
is not eligible to have his date of rank to captain changed to 21 July
2002.

5.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

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

___WP__  ___JR___  ___KJ___  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 AR2004106900, dated 4 November 2004.




                                  _____William Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017134                           |
|SUFFIX                  |                                        |
|RECON                   |2004/11/04                              |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |N/A RC Soldier not on AD                |
|DATE OF DISCHARGE       |N/A RC Soldier not on AD                |
|DISCHARGE AUTHORITY     |N/A RC Soldier not on AD                |
|DISCHARGE REASON        |N/A RC Soldier not on AD                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  14   |102.0000/OFFICER APPOINTMENT            |
|2.  21                  |102.0700/DATE OF RANK                   |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]