RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 November 2006
      DOCKET NUMBER:  AR20060001060


      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          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald L. Lewy                |     |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
second lieutenant to 29 September 2001 and retroactive promotion to first
lieutenant to 29 September 2003.

2.  The applicant states, in a memorandum of record, dated 26 January 2006,
provided with his application that his date of rank to first lieutenant
should be changed to 29 September 2003 from the current date of rank of 29
September 2004.  This correction would coincide with the promotion scale of
the troop program unit/individual mobilization augmentation (TPU/IMA)
Officer Leadership Development Guide.  In July 2001, his direct appointment
was denied by the Chief of Appointments Branch and the Chief advised him
that he did not want to waste the board's time with his age waiver.

3.  The applicant also states, in effect, that in August 2001, he was
denied a direct appointment by the Office of the Deputy Chief of Staff for
Personnel (ODCSPER) and the reason for the rejection was not stated, in
accordance with Army Regulation (AR) 135-100, paragraph 2-3(2)(b).  In
accordance with Army Regulation 135-100 he was required to wait one year
before he could reapply.  In January 2003, before resubmitting an
application, he asked the Chief of Appointments Branch was there anything
that he should have added to his age waiver application.  The Chief advised
him to request an exception to policy.  He asked, the Chief "isn't that
what a waiver is?"  The applicant’s opinion is the Chief did not like his
question because he was told that his request for an age waiver would not
be approved.

4.  The applicant provides copies of his Application of United States Army
Reserve (USAR) Appointment memorandum, letters from the ODCSPER, his letter
to a Member of Congress and replies, his Appointment Memorandum, his Oath
of Office, and the TPU/IMA Officer Leader Development Guide, in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant submitted to the Board a memorandum, dated 9 July 2001,
from the Chief, Appointments Branch, Total Army Personnel Command
(currently known as Human Resources Command (HRC)), St. Louis Missouri,
which advised the Commander, 99th RSC (Regional Support Command),
Oakdale, Pennsylvania, that the ODCSPER had disapproved the applicant's
request for an age waiver.  At the time the applicant was 39 years old.

2.  In a letter, dated 22 August 2001, the 99th RSC, advised the
applicant that ODCSPER disapproved his request for an age waiver which
was needed as part of his application for a direct commission.  The
letter also advised the applicant that the ODCSPER acts with authority
granted by the Secretary of the Army and that there was no provision for
a waiver or reconsideration.

3.  In a letter, dated 26 January 2004, the Chief, Officer Division, Office
of the Deputy Chief of Staff, G1, advised the applicant and a Member of
Congress that as a result of the events that occurred on 11 September 2001,
there was no documentation of the applicant's original application.  The
applicant was therefore invited to resubmit his application for direct
commission to the grade of second lieutenant.

4.  The applicant was appointed in the USAR, Quartermaster (QM) Corps, as a
second lieutenant, effective 29 September 2004, at age 42, with an age
waiver and prior enlisted service.  He signed his Oath of Office on the
same day.

5.  Based on the required 2 years time in grade, his promotion eligibility
date for first lieutenant was 28 September 2006.

6.  The applicant submits a copy of the TPU/IMA Officer Leader Development
Guide that shows promotion time in grade information and authorized
positions within the QM Corps.

7.  In an advisory opinion dated, 21 September 2006, the Chief, Reserve
Appointments, HRC, St. Louis, stated that in response to the request for
opinion and/or administrative correction regarding the applicant's Army
Board for Correction of Military Records action to correct his date of
rank, promotion, and time in grade, there was nothing further the Reserve
Appointments office could do to resolve the applicant's request.  In
August 2001, the applicant was advised by the 99th RSC (22 August 2001)
and the appointments office (letter undated) that his age waiver request
was denied by the ODCSPER.

8.  The Chief also stated, in effect, that applicant’s statement concerning
the comments made by the previous Chief regarding the disapproval of the
age waiver and the subsequent advice to submit a request for exception to
policy are not verifiable and falls under the category of hearsay.  The
Chief added that it must be noted that prior to September 11, 2001, the
ODCSPER's policies about approvals of waivers (age, morale, two-time non-
selects, etc.) were more stringent than they are now.

9.  The advisory opinion was forwarded to the applicant for acknowledgement
and/or rebuttal on 22 September 2006.  He did not respond within the
allotted time.

10.  Army Regulation 135-100 Army Regulation 135-100 prescribes the
policies and procedures for the appointment of commissioned officers in the
Reserve Components.  This regulation specifies that the maximum age
limitation for appointment as a second lieutenant is less than 28 years as
of the date of appointment.  Appointing authorities may approve requests
for waiver for age
28 to 32 years and 6 months.  A waiver for age in excess of 32 years and
6 months will be granted only by the Secretary of the Army.  Requests for
waivers will be submitted through command channels and must be fully
justified as being in the best interest of the Army.

11.  Army Regulation 135-100, paragraph 2-3(2) specifies that the commander
initially receiving the application will return the application if the
applicant does not meet the basic administrative prerequisites for
appointment, giving reasons for rejection.

12.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that promotion to
first lieutenant requires completion of 2 years time in grade.

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 second lieutenant and
retroactive promotion to first lieutenant.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  The applicant contends that he was denied a direct commission in August
2001 and the Chief of Appointments, HRC, St. Louis, advised him that he did
not want to waste the board's time with the applicant's age waiver.
However, on 22 August 2001, the 99th RSC advised the applicant that the
ODCSPER had disapproved his request for an age waiver needed as part of his
application for a direct commission.  In accordance with pertinent
regulations and based on the applicant's age (39) in 2001, the Appointments
Branch was not the approval authority for an age waiver.  The ODCSPER,
acting with authority granted to them by the Secretary of the Army, was the
approval authority for age waivers
if an applicant exceeded the age of 32 years and 6 months as of the date of
appointment.

3.  The applicant was advised that as a result of the event that occurred
on September 11th, he could reapply for an age waiver and his request would
be weighed against the current structure requirements of the Army Reserve.
He was granted an age waiver and appointed as a second lieutenant in
September 2004, based on the needs of the Army at the time.

4.  The documentation submitted by the applicant serves as a development
guide for officers of the QM and can not be used as a basis for an
adjustment to his appointment date and a retroactive promotion.  The
applicant must complete 2 years time in grade for promotion to first
lieutenant.

5.  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

___AM__  __DLL___  _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                 |AR20060001060                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061130                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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