RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:        18 July 2006
      DOCKET NUMBER:  AR20060001694


      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, promotion consideration to captain
under the 1996 year criteria and adjustment to his date of rank for captain
from September 1998 to December 1996, if selected.

2.  The applicant states, in effect, that he was omitted from consideration
by the November 1996 captain promotion board, which subsequently resulted
in his untimely consideration for promotion to captain.

3.  The applicant provides copies of his appointment memorandum and his
promotion memorandums for first lieutenant and captain in support of his
requests.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 September 1998, his promotion effective date and date of
rank for captain. The application submitted in this case is dated 1
February 2006.

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
United States Army Reserve, as a second lieutenant, effective 26 April
1991.  He was subsequently appointed in the Florida Army National Guard
(ARNG) and promoted to first lieutenant effective 25 April 1994.

4.  Based on the maximum of 7 combined years of service as a lieutenant,
his maximum years of service in grade (MYIG) for promotion to captain was
25 April 1998.

5.  He was considered and selected for promotion to captain by the 1997
Reserve Components Selection Board (RCSB), which convened on 13 November
and recessed on 12 December 1997.  The President approved the board results
on 25 June 1998.
6.  He was issued promotion orders from the Arizona ARNG, dated 1 October
1998, indicating his promotion to captain with a promotion effective date
and date of rank of 15 September 1998, based on his assignment to a
captain's position.

7.  He was promoted to major effective 8 June 2005 and is currently serving
on active duty in the Active Guard Reserve.

8.  In an advisory opinion, dated 9 March 2006, the Chief, Special Actions,
Office of Promotions, Reserve Components, Human Resources Command – St.
Louis, Missouri, stated that the applicant was considered and selected for
promotion to captain by the 1997 RCSB.  The applicant's first lieutenant
date of rank was 25 April 1994.  The dates of rank to be considered by the
1996 captain RCSB was 16 May 1993 and earlier.  The applicant's date of
rank did not fall into the category for the 1996 RCSB.  The total time in
grade from second lieutenant to captain is 7 years.  The applicant is on
track for his time in grade.  Based on this information, it was recommended
the applicant's request be denied.

9.  The advisory opinion was forwarded to the applicant for acknowledgement
and/or rebuttal on 16 May 2006.  In his rebuttal, dated 5 June 2006, the
applicant stated that he thinks there may be some misunderstanding on what
he requested.  The advisory opinion stated that the time for promotion from
second lieutenant to captain is 7 years and he agrees.  He was commissioned
on 21 April 1991 and promoted to captain on 15 September 1998.  The time
was 7 years and 6 months.  He is requesting that his date of rank be
adjusted for his promotion to captain by one year.  His promotion
eligibility date (PED) for captain was incorrectly calculated as 24 April
1999, which is 8 years in the lower grade (per the promotion memorandum,
dated 30 July 1998).  He was promoted earlier than this date by 6 months
because he was in the ARNG and in a position of higher rank.  However, it
actually caused him to lose one full year for promotion purposes.  He is
requesting that his PED be adjusted to 24 April 1998, which is 7 years in
the lower grade, and that his date of rank be adjusted accordingly by that
one year.  The applicant provides a copy of his promotion memorandum, dated
30 July 1998, in support of his rebuttal.

10.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary
(Manpower and Reserve Affairs) acknowledged that pertinent Army agencies
had agreed that the faulty promotion policy for promotion to captain should
be revised, and that actions would be initiated for this purpose.  He
further stated that affected individuals would be advised they could seek
relief from the Army Board for Correction of Military Records (ABCMR) which
could adjust DOR’s for those who were first-time considered and selected
for promotion to captain, after having served more than 7 combined MYIG as
a lieutenant.
11.  The Reserve Officer Personnel Management Act (ROPMA) prescribed the
policies and procedures to consolidate and modernize the laws governing the
management of Reserve component officers.  The law was implemented on
1 October 1996.  ROPMA provides that a second lieutenant serve a MYIG of
2 years before promotion to first lieutenant, and a first lieutenant serve
a MYIG of 5 years before promotion to captain and that an officer selected
for the first time for promotion to captain may be promoted on or before
the date that he/she completes the MYIG.  ROPMA further specifies that 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 President.

12.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  This regulation specifies that the
Secretary of the Army or his or her designee will establish the zone of
consideration for each mandatory promotion board for commissioned officers.
 This regulation also specifies that promotion
consideration/reconsideration by a special selection board may only be
based on erroneous non-consideration or material error which existed in the
record at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to promotion consideration to captain under the 1996 year criteria
and adjustment to his date of rank for captain.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  The applicant's contention that he should have been considered for
promotion to captain by the 1996 promotion board has been noted.  However,
based on his appointment effective date of 26 April 1991 and completion of
7 combined MYIG as a lieutenant, the 1997 promotion board was the earliest
board he was eligible to be considered by for promotion on or before his
MYIG date under the ROPMA criteria.  He completed 7 combined MYIG as a
lieutenant on 25 April 1998.  He was promoted to captain based on his
assignment to a captain's position on 15 September 1998.  Therefore, the
applicant was promoted to captain on the earliest date he met all the
requirements for promotion and in a timely manner.

3.  The Secretary of the Army established the promotion zone for the 1996
captain RCSB for officers with dates of rank for first lieutenant from 16
May 1993 and earlier.  Therefore, the applicant's date of rank for first
lieutenant of 25 April 1994 did not place him in the established promotion
zone for consideration by the 1996 RCSB.
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 15 September 1998, his promotion
effective date and date of rank for captain; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 14 September 2001.  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 concerned.

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                 |AR2006001694                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.05                                  |
|2.                      |131.10                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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