RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20060002479


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 (DOR) to Captain (CPT) be
backdated from February 2006 to September 2004.

2.  The applicant states he should have been promoted to CPT during the
September 2004 position vacancy board, but he was not promoted because his
unit improperly placed him in the new TTHS (Trainee, Transient, Holdee, and
Student) account.  First, he should not have been placed in the TTHS
account when he returned from the Officer Basic Course (OBC) because Judge
Advocate General’s Corps (JAGC) officers are not to be placed in that
status.  Second, he had already obtained an eyesight waiver when he entered
the service.  The waiver was misplaced, causing him to be improperly placed
in that status.  Lastly, his application for CPT was improperly not
processed because his unit administrator felt that being in a TTHS status
prevented him from being promoted.  Being in a TTHS status does not prevent
a promotion; it only prevents the person from taking the position until
removed from the status.

3.  The applicant provides an extract from Army Regulation 135-155; TTHS
Eligibility Rules and Criteria, General Exclusion rules as of 26 October
2004; a Medical or Administrative Processing Information paper, dated 14
October 2005; a printout from the internet announcing his CPT promotion
selection; his CPT promotion orders; a printout from the internet
announcing a new competitive category of U. S. Army Reserve (USAR) JA
officers; a certificate of completion from The Judge Advocate General’s
School for the Legal Assistance Course, date of completion 14 May 2004; his
OBC Service School Academic Evaluation Report; an ARPC Form 3924
(Individual Active Duty Certificate of Performance) dated 18 December 2003;
an Officer Evaluation Report (OER) for the period ending 31 March 2004; and
an OER Support Form.

4.  The applicant also provides a U. S. Army Human Resources Command
(USAHRC) memorandum, subject:  Procedures for Submission of Recommendations
for the 14-24 September 2004 Position Vacancy Boards (PVB) for Troop
Program Unit (TPU) positions, dated 12 December 2003; a web message, posted
7 April 2004, subject:  September 2004 PVB Application; three DA Forms 2823
(Sworn Statement), all dated 28 January 2006; two emails, dated 28 April
2004 and 26 April 2004; an undated letter from Headquarters, 81st Regional
Readiness Command (RRC), to “Dear TTHS Soldiers”; reassignment orders dated
31 March 2004 and 6 April 2004; his entrance medical examination; and a
printout from the Army Reserve website, subject, TTHS, A Quick Look at the
Trainees, Transients, Holdees and Students Account.

5.  The applicant also provided his medical waiver approval and a DA Form
2823 dated 4 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  On 15 July 2002, the applicant underwent an appointment physical
examination.  The examiner indicated an abnormality with the applicant’s
retina and recommended an eye consult to rule out keratoconus (a bulging of
the cornea).  A DD Form 741 (Eye Consultation) shows the applicant was
diagnosed with (1) myopia and astigmatism; (2) no signs of keratoconus; and
a normal retinal examination.  The applicant was still found to be not
medically qualified for appointment due to an excessive refractive error.
However, on 24 October 2002, the Command Surgeon of the U. S. Army Reserve
Personnel Command approved a waiver of the disqualification.

3.  By letter dated 10 March 2003, the applicant was informed he was
appointed a Reserve commissioned officer as a First Lieutenant (1LT) in the
JAGC.  He took his oath of office on 1 April 2003.

4.  On or about 1 April 2003, the applicant was assigned to the 213th Legal
Support Office (LSO) in Jackson, MS, 81st Reserve Support Command (RSC).

5.  Effective 14 October 2003, the applicant was transferred to the 81st
RRC (formerly the 81st RSC) TTHS account.

6.  By memorandum dated 12 December 2003, USAHRC notified Reserve units, to
include the 81st RRC, that a position vacancy board for TPU positions would
convene on 14 – 24 September 2004 or on call.  The memorandum noted that
The Judge Advocate General (TJAG) approves all JAGC officer assignments and
that only a JAGC officer who was assigned to a position of a higher grade
was eligible to be considered for promotion in that position.  It also
noted that assignment of LSO company grade officers and majors was
delegated to the LSO commander.  Applications must have reached USAHRC no
later than        14 July 2004.

7.  On 18 December 2003, the applicant completed OBC.

8.  Effective 31 March 2004, the applicant was released from the 81st RRC
TTHS account and assigned to the 213th LSO.  Effective 6 April 2004, he was
again transferred to the 81st RRC TTHS account.  On an unknown date, he was
transferred out of that account.
9.  The applicant provided a sworn statement from Colonel P___, the former
commander of the 213th LSO.  Colonel P___ stated the applicant was placed
in a TTHS status due to questions about his eyesight and obtaining a
waiver.  Colonel P___ stated that, because the applicant was in a TTHS
status, he could not be processed for the position vacancy board.  Colonel
P___ verified that the applicant was assigned to a CPT position (and stated
that the USAR JAGC does not have any 1LT positions).

10.  The applicant was promoted to CPT on 20 January 2006 as a result of a
mandatory promotion board.

11.  A TTHS account was established in the USAR to increase unit readiness
by removing non-deployable Soldiers from TPU force structure positions.  It
is also intended to produce Duty Military Occupational Skill Qualified
Soldiers available for deployment as needed to fulfill the Army Reserve’s
missions.  Soldiers may be considered for promotion to the next higher
grade but will not be authorized to accept the promotion until they are
assigned in the position.  Officers in the JAGC are excluded from
consideration for TTHS eligibility.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Offices other than General Officers) states that promotion to fill
authorized TPU position vacancies may be filled through promotion of the
best qualified, geographically available officers to the grades of Chief
Warrant Officers Three and Four and Captain through Colonel.  USAR position
vacancy promotion consideration to fill a TPU position vacancy is
authorized (1) when the Commander, USAHRC – St. Louis notifies a TPU
commander that no qualified Individual Ready Reserve (IRR) officer of the
authorized grade is geographically available, and (2) when the area
commander concurs with the TPU commander on the nonavailability of IRR
officers of the same grade and specialty as the position vacancy. It also
states that only JAGC officers selected for JAGC assignments in compliance
with Army Regulation 140-10 will be submitted for consideration for JAGC
position vacancy promotions.  TPU commander approval is not required when
JAGC officers are approved by TJAG for JAGC assignments.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was erroneously placed in a
TTHS status.  To compound that error, he was then erroneously denied the
opportunity to apply for promotion through a position vacancy board to be
held in September 2004 because his unit administrator felt that his being
in a TTHS status prevented him from being promoted.  The applicant’s former
commander has stated that the applicant was assigned to a vacant CPT
position at the time.
2.  The applicant was promoted to CPT on 20 January 2006 as a result of a
mandatory promotion board, almost 18 months after he could have been
promoted to CPT but for the erroneous actions of his unit.

3.  The CPT position the applicant was assigned to at the time he was
denied the opportunity to apply for a position vacancy board promotion may
have since been filled by a different JAGC CPT.  Nevertheless, it would be
equitable to correct the applicant’s records to show he applied for that
vacancy in time to be considered by the September 2004 position vacancy
board.

4.  Presumably, the applicant was selected by TJAG for assignment to the
213th LSO.  Since, according to the former commander of the 213th LSO the
USAR JAGC does not have any 1LT positions, presumably the applicant was
qualified to fill a CPT position.  Therefore, his records should be
corrected to show he was promoted to CPT by that board with an appropriate
date of rank.

BOARD VOTE:

__alr___  __lmb___  __qas___  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 applied for a position vacancy promotion in time to be
considered by the September 2004 position vacancy board; was determined to
be eligible for that position vacancy promotion; and was promoted to CPT by
that board with an appropriate date of rank.




                                  __Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002479                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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