RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      21 November 2006
      DOCKET NUMBER:  AR20060004655


      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. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne Douglas               |     |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
captain from 6 December 2005 to 3 February 2005.

2.  The applicant states that he was appointed as a first lieutenant in the
United States Army Reserve (USAR) on 3 February 2004 with a date of rank of
3 February 2003.  He attended and successfully completed the 164th Judge
Advocate Officer Basic Course (JAOBC) from May 2004 until September 2004.
Prior to graduation from the JAOBC, he volunteered to deploy in support of
Operation Iraqi Freedom and was assigned to the Multi-National Security
Transition Command-Iraq.  He was on active duty from 15 October 2004
through 19 September 2005 and deployed to Iraq during the majority of that
time period.  His deployment orders indicate that he was to remain in the
Reserve promotion system.  Within a month of deployment, he notified his
commander that he had inquired into getting promoted through the same
method as the active component Judge Advocate General (JAG) officers with
no success.  The failure to promote Reserve JAG officers in the same
fashion as active component JAG officers has resulted in hundreds of active
component JAG officers being promoted to captain while he remained a first
lieutenant.

3.  The applicant also states that he became "fully qualified" and eligible
for promotion under Title 10, United States Code (USC), section 14308 on
3 February 2005, when he reached two years time in grade.  Such promotion
shall be in the manner specified in Title 10, USC, section 12203.  Had the
Army implemented federal law, he would have been administratively promoted,
alongside his active component OBC classmates, with a date of rank of
3 February 2005.  It should be noted that his request considered that
Reserve Soldiers must meet the statutory required time in grade specified
for Reserve Soldiers and was used to calculate the proposed date of rank of
3 February 2005.

4.  The applicant provides copies of his appointment orders; his deployment
orders; memorandums from the Commander, Multi-National Security Transition
Command-Iraq; and the Principal Deputy Assistant Secretary for Manpower and
Reserve Affairs; and a letter from the Chief, Army Reserve, in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR, JAG
Corps (JAGC), as a first lieutenant, effective 3 February 2004, with a date
of rank of 3 February 2003.
2.  The applicant entered on active duty effective 15 October 2004.

3.  The applicant was issued orders, dated 21 October 2004, for deployment
in support of Operation Iraqi Freedom, effective 18 October 2004 for 18
months.  The orders advised that during the period of deployment,
gaining/deployed unit commanders had responsibility for personnel service
support to include awards and decorations, the Uniform Code of Military
Justice, and all other forms of personnel and legal administrative support
except Reserve component promotion authority.

4.  In a memorandum, dated 23 January 2005, the Commander, Multi-National
Security Transition Command-Iraq, requested assistance in resolving an
anomaly that adversely affected two officers in his command.  First
Lieutenant _______ and the applicant were activated Reserve JAG officers
serving in the Office of the Staff JA, Multi-National Security Transition
Command-Iraq since the Fall of 2004.  He understood that due to antiquated
authorities, neither could be promoted under either the Reserve or active
duty promotion systems during their one-year active duty period.  Had the
applicant not been called to active duty, he would be eligible for
promotion by a March 2005 Position Vacancy Board (PVB).  Neither was placed
on the certification list promoting active duty first lieutenant judge
advocates to captain.

4.  The Commander, Multi-National Security Transition Command-Iraq, also
stated that these lieutenants were doing outstanding work in a dynamic and
demanding combat environment.  Although they undoubtedly would "Soldier
on," it was a blow to their morale that they must remain lieutenants during
their year of duty in a combat zone while active and non-activated Reserve
Component (RC) counterparts in CONUS billets have been or soon would be
promoted.  The effect was to penalize the very RC Soldiers we ought to be
rewarding for answering the call to serve in Iraq.  In an integrated AC/RC
(Active Component/Reserve Component) command like the Multi-National
Security Transition Command-Iraq, such disparities negatively impact
morale, which in turn affects mission accomplishment.

5.  In a letter, dated 11 February 2005, the Chief, Army Reserve, responded
to an inquiry from the applicant's father.  The Chief, Army Reserve, stated
that the disparity between AC and Army Reserve (AR) promotion timeliness is
attributable to differing promotion policies for each component.  Most AC
JA first lieutenants are administratively promoted to captain on a non-
competitive "fully-qualified" basis within 6 to 9 months after entering
active duty pursuant to a Memorandum of Instructions issued by the
Secretary of the Army.  The promotion of AR JA first lieutenants, on the
other hand, is governed by Army Regulation 135-155.  The regulation
mandates competitive promotion board consideration, establishes longer time
in grade promotion eligibility criteria, and requires available vacancies
in the higher grade in order to promote AR JA first lieutenants.  As a
result, AR JA first lieutenants might not be promoted for months or years
after their AC contemporaries.

6.  The Chief, Army Reserve, also stated that he was seeking a resolution
to this dilemma.  He advised the applicant's father he was sending a
request to the Deputy Chief of Staff, G1, Headquarters (HQDA G-1),
Department of the Army, to revamp the AR JA first lieutenant promotion
process to ensure the AR JA first lieutenants were promoted as quickly as
those of the AC.  He informed the applicant's father that his son's senior
commander had made a similar request to HQDA-G1, specifically citing the
applicant as an example of the unequal impact of the promotion policies.
He summarized by stating that the applicant and his JA comrades deserved a
promotion system that recognizes their potential for greater responsibility
in a fair and timely fashion.  The Chief, Army Reserve, encouraged the
applicant's father to rest assured that they would continue to work
diligently to establish such a system.

7.  Based on the 2 years minimum time in grade (TIG), his TIG for
eligibility for promotion to captain by a position vacancy board (PVB) was
2 February 2005.

8.  He was released from active duty effective 19 September 2005 and
transferred to a Reserve troop program unit (TPU).

9.  He was considered and selected for promotion to captain by the
September 2005 PVB that convened on 28 September 2005.  The board was
approved on 6 December 2005.

10.  He was promoted to captain with a promotion effective date and date of
rank of 6 December 2005.

11.  In a memorandum, dated 4 April 2006, the Principal Deputy Assistant
Secretary of the Army for Manpower and Reserve Affairs, requested to
eliminate the mandatory captain promotion selection board for AR JAGC
officers in the Army Reserve Active Guard Reserve (AGR) JAGC and the Army
Reserve
Non-AGR JAGC competitive categories.  He states that under the provisions
of Title 10, USC, section 14101(a)(3) and section 14308(b)(4), the
Secretary of the Army has the authority to authorize that in lieu of a
mandatory promotion board that JAGC officers be promoted to captain if they
are determined to be eligible, fully qualified, and needed at the higher
grade to accomplish mission objectives.  Use of the fully qualified
certification process is justified because all AR JAGC positions are graded
at captain and higher, and Active Duty List (ADL) JAGC officers have been
promoted to captain using the fully qualified certification process since
2003."

12.  The Principal Deputy Assistant also stated that if approved, The JAG
(TJAG) would begin using the fully qualified certification process to
review AR JAGC first lieutenants on 1 October 2006, and up to three times
each year thereafter.  The approval authority for promotion to captain
would remain with the Secretary of Defense.  The Office of TJAG and the
Office of the General Counsel had reviewed this action and had no legal
objections.  The TJAG strongly supported this action and the Secretary of
the Army approved the request on 10 April 2006.

13.  Based on the 5 years maximum TIG, his TIG for promotion to captain by
a mandatory Reserve promotion board was 2 February 2008.

14.  In an advisory opinion, dated 11 May 2006, the Chief, Special Actions,
Office of Promotions, Reserve Components, Human Resources Command, St.
Louis, Missouri, stated that the applicant was appointed a USAR first
lieutenant on 3 February 2004, with a date of rank of 3 February 2003.  The
applicant was in the JAGC.  His PED for captain was 2 February 2008.  The
applicant was considered and selected by the 2006 PVB that convened on 28
September 2005. His date of rank from that board was 6 December 2005, the
date the board was approved.  This is the earliest date he could be
promoted and several years prior to his PED.  The applicant might have been
put in for the earlier PVB which was held on 22 March 2005.  However, in
the Reserve, a Soldier cannot be considered by a PVB if the Soldier is not
in a permanent position.  The applicant was deployed at the time of the 22
March 2005 PVB; therefore, he could not be considered because he was not in
a valid position.

15.  The Chief, Special Actions, also stated that in reference to the
implementation of fully qualified promotions for JAGC officers, it was
suggested the applicant contact the office of the G1 for guidance since the
Office of Promotions, Reserve Components, did not have the authority to
carry out this request.

16.  The advisory opinion was forwarded to the applicant for
acknowledgement/
rebuttal on 23 August 2006.  In his interim rebuttal, dated 18 September
2006, the applicant stated that the advisory opinion did not rebut any
point of fact outlined in his request for a change to his date of rank.
The opinion states that "this was the earliest date he could be promoted."
This was not correct.  This statement may be in reference to the ability to
promote him by the PVB held in September 2005.  Had the Army G1 prepared a
Memorandum of Instructions authorizing administrative (boardless)
promotions for Reserve JAG officers as it had done for AC JAG officers, the
earliest date he could have been promoted would have been 3 February 2005,
the date he would have satisfied the statutory requirement of having 2
years time in grade.

17.  The applicant also stated that not only had the advisory opinion
supported him by stating that the Army G1 had the authority to implement
full-qualified promotions, the Army G1 had, in fact, implemented fully
qualified promotion to the rank of captain for AR JAG officer subsequent to
the filing of his request to the Board.  The Department of the Army
Assistant Secretary (Manpower and Reserve Affairs) stated in its
memorandum, dated 4 April 2006, that the "fully qualified certification
process was justified because all AR JAGC positions are graded at captain
and higher, and ADL JAGC officers have been promoted to captain using the
fully qualified certification process since 2003."

18.  The applicant further stated that there was no stronger support for
his request to the Board to adjust his date of rank to 3 February 2005 than
the fact that the Army G1 and Office of the Assistant Secretary had
implemented fully-qualified promotions.  Now that the Army G1 has
implemented the fully-qualified to captain for AR JAG officers, he can be
further prejudiced if the Board does not adjust his date of rank to 3
February 2005.  Not only is he currently behind his active component peers
that were granted fully qualified promotions, but his AR peers that may
join the Army a year or more later than himself will get accelerated
promotions.  The Board's letter, dated 23 August 2006, states that the
opinion is "an unfavorable recommendation."  First, the opinion does not
reference law or policy that provides any guidance to the Board on this
issue.  Nor does it explicitly make a recommendation to the Board.  He
hopes the Board views the opinion as he did in that it does not preclude
the Board from making a favorable determination in his appeal.  He feels
that the law, policy, and subsequent action of the Army to implement fully
qualified promotions broadly support his assertion that he was unduly
prejudiced by the Army's delayed action and not implementing Congressional
legislation evenly between the Active and Reserve Components.

19.  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.

20.  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.  JAGC officers may
only be considered for promotion to fill vacancies within their respective
branches.

21.  Army Regulation 135-155 also specifies that a first lieutenant will
receive mandatory promotion consideration for promotion to captain upon
completion of 5 years in the lower grade.

22.  Army Regulation 600-8-29 prescribes the policies and procedures for
promotion of active duty officers.  This regulation states that to be
considered for promotion, an officer must be on the ADL on the date the
board convenes.  An officer must complete 2 years time in grade to be
promoted to captain.  Commissioned officers are promoted from promotion
lists in order of seniority (shown by the promotion sequence number) as
additional officers are needed within each competitive category.
Promotions would be announced in Headquarters, Total Army Personnel Command
(PERSCOM) orders.

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 6 December 2005
to 3 February 2005.  He has not shown error, injustice, or inequity for the
relief he now requests.

2.  The evidence shows the applicant entered on active duty on 15 October
2004, as a Reserve JAGC officer.  In accordance with promotion policies
governing Reserve officers, he was eligible for promotion to the next
higher grade under the Reserve system, as he was not an officer on the ADL.
 He was released from active duty and reassigned to the USAR.  He was
considered and recommended for promotion to captain by the September 2005
PVB.  He was promoted to captain on 6 December 2005, the approval date of
the September 2005 PVB.

3.  It appears that the applicant was not processed by his command for
consideration by the March 2005 PVB as he was deployed at the time and not
in a permanent position.  It is also not known whether a position vacancy
existed for the applicant to fill in order for him to be promoted at the
time.  Title 10, USC, section 14308(b)(4) provides that in lieu of a
mandatory promotion board, JAGC officers may be promoted to captain if they
are determined to be eligible, fully qualified, and needed at the higher
grade to accomplish mission objectives.  The applicant's Reserve promotion
by a PVB granted him an earlier promotion as a JAGC officer and an earlier
date of rank several years prior to his PED.

4.  The applicant's contention that the fact the Army G1 and the Office of
the Assistant Secretary had implemented the fully qualified promotion to
captain of AR JAGC officers, his date of rank should be adjusted to 3
February 2005, so as not to further prejudice him, has been noted.
However, the approved policy began using the fully qualified certification
process to review AR JAGC first lieutenants beginning 1 October 2006.  This
policy was not retroactive or grandfathered in any way for AR JAGC
officers.  Based on the applicant's mobilization he was not in a permanent
position at the time of the March 2005 PVB.  Upon his deployment, he was
given the opportunity for an early RC promotion and identified for his
first eligible PVB promotion within the minimum time allowed under the
Reserve promotion policy.  Therefore, the applicant is not entitled to an
adjustment to his date of rank for captain based on his circumstances and
mobilization.

5.  It is concluded that since the applicant could not be promoted any
earlier without the benefit of an authorized position vacancy and the
implementation of the fully qualified certification process beginning 1
October 2006, adjustment to his date of rank to 3 February 2003 would not
be equitable.  He was appropriately promoted to captain based on his
selection by the September 2005 PVB.

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

_PBF____  __TAP__  __LD____  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.




                                  ____Thomas A. Pagan______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004655                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061121                                |
|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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