RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060001055


      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. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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 to his date of rank for
captain from 5 April 2005 to 26 May 2004.

2.  The applicant states, in effect, that his promotion to captain was
delayed approximately one year.  The delay was due to an administrative
error at the unit level and through no fault of his own.  He also states
that from 2001 to 2004, he was a member of the 5035th Garrison Support Unit
(GSU), Fort Bliss, Texas.  While in the GSU, he applied for a promotion to
captain via the January 2004 Position Vacancy Board (PVB) for a vacant
captain Administrative Law Officer position.  He received the applicant
package, which he submitted with all necessary enclosures including a
statement from Colonel ______, the Staff Judge Advocate (SJA), who
certified the vacancy and recommended him for the position vacancy
promotion, and a completed DA Form 2464-R and DA Form 4935-R, which
verified the vacant Administrative Law Officer position.  The January 2004
PVB convened as scheduled and recommended him for the position vacancy
promotion.

3.  The applicant also states that on or about 24 May 2004, the 90th
Regional Readiness Command (RRC), determined the vacancy did not exist at
the time of the January 2004 PVB.  Unbeknownst to himself and Colonel
_____, the GSU erroneously and through no fault of his own, filled the
position during his application period.  In order to be considered for
promotion by the November 2004 mandatory board, he had no choice but to
decline the PVB promotion and his declination was accepted.  As a result of
the November 2004 board, he was promoted effective 5 April 2005.  He
inquired whether his promotion could be back-dated and was instructed to
submit a request to the Army Board for Correction of Military Records
(ABCMR).

4.  The applicant provides copies of his captain PVB promotion
consideration packet memorandum; a memorandum from the Staff JA, 5035th
GSU, Fort Bliss, Texas; a DA Form 2464-R (United States Army Reserve (USAR)
Unit Vacancy Promotion Recommendation;, a DA Form 4935-R (Request for Unit
Vacancy Fill); a Unit Manning Report (UMR) for the 5035th GSU, Fort Bliss;
electronic mail (email) correspondence from the 90th RRC, the Office of The
Judge Advocate General (OTJAG) and the Chief, Office of Promotions, Reserve
Components, Human Resources Command (HRC), St. Louis, Missouri, in support
of his request.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR,
Judge Advocate General Corps (JACG), as a first lieutenant, effective 24
August 2001.

2.  Based on the 2 years minimum time in grade (TIG), his TIG for promotion
to captain by a PVB was 23 August 2003.  Based on the 5 years maximum TIG,
his TIG for promotion to captain by a mandatory promotion board was
23 August 2006.

3.  In a memorandum, dated 25 August 2003, the applicant submitted a packet
for consideration for promotion to captain by a PVB.

4.  In a memorandum, dated 27 August 2003, the SJA, 5035th GSU, Fort Bliss,
recommended the applicant for the position vacancy as the Administrative
Law Officer for the 5035th GSU.  He stated that the applicant had served
with the 5035th GSU since 24 August 2001 in the vacant Administrative Law
Officer position.  The position was authorized the rank of captain.

5.  In an undated DA Form 2464-R, the applicant is listed as the officer
recommended for a position vacancy promotion to fill the position of
Administrative Law Officer.

6.  In an undated DA Form 4935-R, the Administrative Law Officer position
is listed as an actual vacancy as of 6 August 2003 within the 5035th GSU,
Fort Bliss.

7.  A 5035th GSU UMR, dated 6 August 2003, shows the applicant was serving
in the Administrative Law Officer position, as a first lieutenant, with an
authorized grade of captain.

8.  He was considered and recommended for promotion to captain by the
January 2004 PVB that convened on 13 January 2004.

9.  In email correspondence, dated 26 May 2004, a staff member of the 90th
RRC, listed the individuals, to include the applicant, recommended for
promotion by January 2004 PVB.

10.  In a memorandum, dated 27 July 2004, the Chief, Military Personnel
Actions Branch, Human Resources Command (HRC), St. Louis, Missouri,
recommended the Commander, Office of Promotions, Reserve Components, HRC,
St. Louis, remove the promotion selection of the applicant from the 2004
PVB.
11.  In email correspondence, dated 9 August 2004, a staff member of the
Personnel, Plans, & Training office, OTJAG, advised the applicant that when
he applied to the PVB there was no vacancy that existed.  Because of this
the HRC, St. Louis, could not issue a promotion order.  He would be
considered by the captain RCSB that November, but only if he sent a letter
declining the PVB promotion.  If his records indicated that he was pending
promotion, then the captain mandatory board would remove his file from
consideration.

12.  In a memorandum, dated 9 August 2004, the applicant declined his
promotion from the January 2004 PVB.  The applicant stated that the reason
for his declination was no vacancy actually existed, therefore, he could
not accept the selection.

13.  He was considered and selected for promotion to captain by the 2004
Reserve Components Selection Board (RCSB) mandatory promotion board that
convened on 2 November and recessed on 9 November 2004.  The Secretary of
the Army approved the board results on 14 February 2005.

14.  A staff member of the Office of Promotions, Reserve Components, HRC,
St. Louis, verified that the applicant was assigned to a valid position
(higher grade) effective 12 April 2005.

15.  He was issued a promotion memorandum, dated 12 April 2005, showing his
promotion effective date and date of rank for captain was 5 April 2005.

16.  In email correspondence, dated 3 October 2005, a staff member of the
Personnel, Plans, & Training office, OTJAG, responded to the applicant's
inquiry as to whether there was a process by which he could have his
promotion of 5 April 2005 from first lieutenant to captain back-dated to
approximately 26 May 2004.  The OTJAG official advised the applicant that
there was no re-look board for PVBs and that he may file his request with
the ABCMR.

17.  In email correspondence, dated 5 October 2005, the Chief, Office of
Promotions, Reserve Components, HRC, St. Louis, responded to the
applicant's inquiry for documentation to verify if he was recommend for
promotion by the January 2004 PVB.  The HRC official confirmed that the
applicant was recommend for promotion by the January 2004 PVB.  The HRC
official advised the applicant that USARC/RRCs were responsible for
notifying the officers of the selection/non-selection by PVBs.  The HRC
official also advised the applicant that it was noted that he declined the
PVB promotion and he was then selected by the 2004 captain RCSB mandatory
board.

18.  In an advisory opinion, dated 16 May 2006, the Chief, Special Actions,
Office of Promotions, Reserve Components, Human Resources Command, St.
Louis, Missouri, stated that the applicant was considered by the 2004 PVB
which convened on 13 January 2004.  He was selected for this position.  The
applicant later found out the position for which he was applying was
already filled.  There are no special boards for cases like this.  The
board is a PVB; therefore, if there was no vacancy, the applicant could not
be promoted based on that criteria.  The applicant had to decline the
position vacancy promotion in order to be considered by the 2004 RCSB.  The
applicant has since been selected and promoted to captain by the 2004
mandatory board.  In view of the foregoing, it was recommended the
applicant's request be denied.

19.  The advisory opinion was forwarded to the applicant for
acknowledgement/
rebuttal on 20 June 2006.  In his rebuttal, dated 9 July 2006, the
applicant stated that at his commander's suggestion, he eagerly submitted a
promotion packet for the 2004 PVB.  He applied for a position vacancy
promotion because he met the basic requirements and because a vacancy in
fact existed at the time.  Of course he was pleased the 2004 PVB selected
him for promotion; however, but for an administrative error at the unit
level, he would have been promoted in or about May 2004.

20.  The applicant further stated that the supporting documentation
submitted with his original application illustrated the existence of the
vacancy at the time the PVB convened.  The position should have remained
vacant throughout his PVB process.  His career counselor, Major ________,
advised him that his only option was to decline further consideration for
the 2004 PVB in order to be considered by the November 2005[sic] mandatory
board.  Although he maintained that an injustice occurred, he submitted a
memorandum declining further consideration for the 2004 PVB promotion.  He
was promoted to captain via the 2004 mandatory board with a date of rank of
5 April 2005.

21.  The applicant also states that the basis for his appeal to the ABMCR
simply was the fact his promotion stalled because of an administrative
error and through no fault of his own.  The error effectively caused a one
year delay in his promotion from first lieutenant to captain.  He hopes the
ABCMR agrees that backdating his date of rank to May 2005[sic] would remedy
the error.

22.  Army Regulation 135-155, prescribes the policies and procedures for
the 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 minimum time
in grade.  Promotion to fill authorized TPU position vacancies may be
filled through promotion of the best-qualified and geographically available
officer to the grades of captain through colonel.  All TPU officers in the
next lower grade must have met the minimum time in grade for promotion to
the next higher grade and be geographically (non-mobilized) available to
serve in the position for which considered.  The existence of a valid
position will be determined by counting certain officers against the
strength authorized.  The area commander will ensure that the intent of the
position vacancy fill procedures have been complied with before proceeding
with PVB promotion consideration.

23.  Army Regulation 135-155 also specifies that the unit commander will
initiate position vacancy promotion procedures and forward a memorandum
listing all unit officers eligible for promotion consideration.  The
memorandum will include the following information:  rank of position,
branch, area of concentration, position title, unit, UIC, location of unit,
table of organization and equipment/table of distribution and allowances
number, PARA/LINE number, and date of position vacancy.  JACG officers may
only be considered for promotion to fill vacancies within their respective
branches.

24.  Army Regulation 135-155 further specifies that if an officer selected
for a position vacancy promotion is determined to be ineligible for
promotion, the Office of Promotions, Reserve Components, will, after
verification, explain the officer's ineligibility and request removal or
administrative deletion of the officer's name.  An officer is not eligible
for consideration if he or she was not approved for the position per Army
Regulation 140-10.

25.  Army Regulation also specifies that 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.  The officer
must be serving in a position requiring the higher grade or assigned to the
Individual Ready Reserve.  Promotion cannot be effective prior to approval
of respective boards by the designated approval authority.

26.  Army Regulation 135-155 also specifies that special selection boards
(SSB) will convene and consider commissioned officers who were erroneously
not considered and reconsider commissioned officers who were considered but
not selected by mandatory promotion boards (both not applicable to this
applicant).   The regulation does not provide for promotion consideration
by a special selection board (SSB) for erroneous consideration by a PVB or
non-promotion to the next higher grade as a result of a PVB selection.




DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to adjustment of his date of rank for captain from 5 April 2005 to
26 May 2004.  He has not shown error, injustice, or inequity for the relief
he now requests.

2.  It appears that when the applicant submitted a packet for a position
vacancy promotion he was advised that a vacancy existed.  He was considered
and recommended for promotion to captain by the January 2004 PVB.  Prior to
the processing of his promotion, it was determined that when the
applicant's promotion packet was submitted for consideration, a position
vacancy did not exist for the applicant to fill in order for him to be
promoted.  Therefore, the applicant was not promoted to captain based on
his selection by the 2004 PVB.  The applicant was advised of his options
and elected to decline his promotion selection by the 2004 PVB in order to
be considered by the 2004 mandatory RSCB.

3.  He was selected for promotion by a mandatory board with a date of rank
of 5 April 2005, based on his assignment to a higher graded position.
Therefore, he received the earliest date he was entitled.

4.  The Board is aware that administrative errors occur for a variety of
reasons; however, the applicant could not be promoted to captain with a
date of rank of 26 May 2004, based on his selection by the 2004 PVB.  He
could not be promoted without the benefit of an authorized position
vacancy.  For this reason, the applicant was appropriately advised to
decline his promotion/selection by the 2004 PVB.

5.  It is also noted that regulatory guidance or law does not provide for
promotion consideration by a special selection board or adjustments to
promotions and dates of rank based on the applicant's circumstances.  Since
there is no authorization for promotion to the next higher grade based on
filling a position vacancy, when none existed, the applicant is not
entitled to an adjustment to his date of rank for captain, as if he was
promoted by the January 2004 PVB.  He was appropriately promoted to captain
based on his selection by the 2004 mandatory board.

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

__JCR___  __DWT__  __WFC__  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 for correction of the
records of the individual concerned.




                                  ______William F. Crain___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001055                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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