RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060002446


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 that his date of rank to captain be adjusted
from 15 April 2005 to 11 March 2004.

2.  The applicant states, in effect, that he was not selected for promotion
by a Department of the Army (DA) Mandatory Board for the rank of captain
due to a material error in his records.  He continues that after the error
was corrected, he requested a Special Selection Board (SSB) for promotion
to the rank of captain.

3.  The applicant states that the SSB selected him for promotion after a
subsequent DA Mandatory Board promoted him.  The applicant further states
that the memorandum from the SSB authorized that his date of rank would not
be earlier than 11 March 2004.

4.  The applicant provides a copy of National Guard Bureau (NGB) Form
25 (Army National Guard Officer Evaluation Report Non-Rated Period), dated
29 July 2004; a DA Form 2-1 (Personnel Qualification Record); a DA Form
1059 (Service School Academic Evaluation Report), dated 31 October 2003; a
memorandum from the U.S. Army Human Resources Command, dated 8 April 2004;
Headquarters, 7th Infantry Division, Fort Carson, Colorado, Orders Number
152-099, dated 31 May 2004; a DD Form 214 (Certificate of Release or
Discharge from Active Duty) with a separation date of 29 June 2004;
Colorado Army National Guard (COARNG) Element, Joint Force Headquarter
Orders Number 310-003, dated 5 November 2004; a memorandum from U.S. Army
Human Resources Command, dated 1 March 2005; COARNG Element, Joint Force
Headquarter Orders Number 097-065, dated 7 April 2005; a memorandum from
the National Guard Bureau, dated 15 April 2005; Federal Recognition Orders
Number 116 AR, dated 15 April 2005; a memorandum from U.S. Army Human
Resources Command, dated 15 August 2005; COARNG Element, Joint Force
Headquarter Orders Number 293-025, dated 20 October 2005, and an additional
24 pages from his service records in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant was promoted to the rank of first lieutenant
in the COARNG effective 26 July 2000.

2.  National Guard Bureau Federal Recognition Orders Number 177 AR, dated
4 October 2000, awarded the applicant permanent Federal Recognition for
promotion to the rank of first lieutenant, effective 26 July 2000.
3.  On 8 April 2004, the U.S. Army Human Resources Command informed the
applicant that he was not selected by the DA Reserve Component Mandatory
Selection Board for promotion to the rank of captain.

4.  NGB Form 25, dated 29 July 2004, shows the applicant was not rated
during the period 4 May 2002 through 2 June 2002.

5.  U.S. Army Human Resources Command memorandum, dated 1 March 2005,
notified the Army National Guard Personnel Center that the 2004 Reserve
Components Selection Board, which adjourned on 9 November 2004, selected
the applicant for promotion to the rank of captain.

6.  COARNG Element, Joint Force Headquarter Orders Number 097-065, dated
7 April 2005, promoted the applicant to the rank of captain with an
effective date of 7 April 2005.

7.  National Guard Bureau Federal Recognition Orders Number 116 AR, dated
15 April 2005, awarded the applicant permanent Federal Recognition for
promotion to the rank of captain, effective 15 April 2005.

8.  U.S. Army Human Resources Command memorandum, dated 15 August 2005,
notified the Army National Guard Personnel Center that the applicant was
selected for promotion to the rank of captain by a Special Selection Board
(SSB) under the FY 2003 criteria.  The memorandum also stated that the
applicant's earliest date of rank was 11 March 2004, the date the President
approved the list.

9.  The National Guard Bureau provided an advisory opinion, dated 22 March
2006, pertaining to this case.  The Chief, Personnel Division stated that
the applicant requested that his promotion effective date and date of rank
be adjusted from 15 April 2005 to 11 March 2004.  The Chief, Personnel
Division indicated that the applicant was not selected for promotion to the
rank of captain due to a material error in his service record at that time.

10.  The Chief, Personnel Division continued that the applicant corrected
his service record and requested a SSB in accordance with Army Regulation
135-155 (Promotion of Commissioned Officers and Warrant Officers other than
General Officers), then the following year he was selected by a DA
Selection Board and later on the same year was selected by a SSB which
authorized promotion to the grade of captain not earlier then 11 March
2004.

11.  The Chief, Personnel Division stated that Human Resources Command –
St. Louis sent a memorandum, dated 1 March 2005, to the applicant reference
eligibility for promotion as a Reserve Commissioned Officer not on Active
Duty, for promotion to captain with a promotion effective date as not
earlier than 9 November 2004.  The Chief, Personnel Division continued that
the COARNG, Military Personnel Office (MILPO) published Order Number 097-
065, dated 2 April 2005, for promotion to captain with an effective date as
7 April 2005 and Federal Recognition Order Number 116 AR was issued
promoting the applicant effective 15 April 2005.

12.  The Chief, Personnel Division continued that the applicant was
selected for promotion to captain by a SSB under the 2003 promotion
criteria with a promotion effective date as not earlier than 11 March 2004,
per Human Resources Command – St. Louis memorandum, dated 15 August 2005.

13.  The Chief, Personnel Division stated that "Army Regulation 135-155
specified that promotion reconsiderations by a standby promotion advisory
board may only be based on erroneous nonconsideration or material error
which existed in the record at the time of consideration.  Material error
in the context or error such a nature that in judgment of the reviewing
official, it caused an individual nonselection by a promotion board and,
that such error(s) been corrected at the time of the individual was
considered, a reasonable change would have resulted that the individual
would have been recommended for promotion.  The regulation also states that
the boards are not required to divulge the proceedings or the reason for
nonselection, except where an individual is not qualified due to
noncompletion of required military school."

14.  The Chief, Personnel Division recommended approval of the applicant's
request to adjust the promotion effective date and date of rank from 15
April 2005 to 11 March 2004, in accordance with Human Resources Command –
St. Louis memorandum, dated 15 August 2005 and all back pay and allowances.
 The National Guard Bureau, Personnel Policy and Readiness Division
concurred with the recommendations.

15.  Section 14502(b) of Title 10, United States Codes, states that in the
case of an officer who was eligible for promotion and was considered for
selection for promotion from in or above the promotion zone by a selection
board but was not selected, the Secretary of the military department
concerned may, under regulations prescribed by the Secretary of Defense,
convene a special selection board to determine whether the officer should
be recommended for promotion, if
the Secretary determines that (a) the action of the selection board that
considered the officer was contrary to law or involved material error of
fact or material administrative error; or (b) the selection board did not
have before it for its consideration material information.

16.  Section 14502(e) of Title 10, United States Code, states that an
officer who is placed on a promotion list as a result of recommendation for
promotion by a special selection board shall, as soon as practicable, be
appointed to the next higher grade in accordance with the law and policies
which would have been applicable had the officer been recommended for
promotion by the board which should have considered or which did consider
the officer.  An officer who is promoted to the next higher grade as the
result of the recommendation of a special selection board upon such
promotion, have the same date of rank, the same effective date for the pay
and allowances of that grade, and the same position on the reserve active-
status list as the officer would have had if the officer had been
recommended for promotion to that grade by the selection board, which
should have considered, or which did consider, the officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his date of rank for captain be adjusted
from 15 April 2005 to 11 March 2004.

2.  Evidence shows that the applicant was non-selected under the FY 2003
Captain DA Mandatory Promotion Board.

3.  Evidence shows that after the applicant discovered and corrected an
error in his service records, he requested a SSB for promotion to the rank
of captain.

4.  Evidence shows that the applicant was considered by a FY 2004 DA
Mandatory Board and was selected for promotion to the rank of captain.

5.  Evidence further shows that the SSB selected the applicant for
promotion to the rank of captain under the FY 2003 major criteria which was
approved by the President on 11 March 2004.

6.  Regulation and law states that promotion reconsideration by an SSB may
be based on material error which existed in the officer's record at the
time of consideration.  If the officer is selected for promotion by the
SSB, that promotion would have the same date of rank and the same effective
date for the pay and allowances of that grade, as the officer would had
been recommended for promotion to that grade by the previous promotion
board.
7.  In accordance with law and regulations, it would be in the interest of
the Army to correct the applicant's records to show that his promotion
effective date and his date of rank to captain as 11 March 2004 and he
should be provided all back pay and allowances as a result.

BOARD VOTE:

_BPI___  _RDG ___  _EEM____  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 the rank of captain with an effective date and
date of rank of 11 March 2004, with entitlement to all back pay and
allowances based on this adjustment.




                                     __Bernard P. Ingold ___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002446                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070111                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  311  |131.0100.0000                           |
|2.  315                 |131.0500.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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