RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20060006934


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, that his date of rank for captain be
adjusted to reflect the results of the board that convened and was
published in 1996.

2.  The applicant states, in effect, that while on active duty the Army
Competitive Category (ACC) Promotion Board for Fiscal Year 1996 convened
and he was not considered for promotion because his college diploma was
missing from his official records.

3.  The applicant provides copies of his Bachelor of Science Diploma, and
copies of two OERs he received while on active duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred during the FY 1996 ACC Captain’s Promotion Board.  The application
submitted in this case is dated on 31 July 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 limitation 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 as a second
lieutenant on 28 September 1993, with prior enlisted service.  He was
appointed as a first lieutenant on 28 September 1995.

4.  On the 21 July 1995, the applicant received his Bachelor of Science
Degree in General Business from the University of the State of New York at
Albany, New York.

5.  He was released from active duty as a first lieutenant effective 1
February 1997 under an early release program-Special Separation Benefit and
transferred to a USAR troop program unit (TPU).

6.  During the processing of this case, an advisory opinion was obtained
from the Chief, Special Actions Branch, Office of Promotions, Reserve
Components, U.S. Army Human Resources Command (USA HRC, St. Louis,
Missouri.  This USA HRC official recommends disapproval based on the
applicant requesting that his captain date of rank be adjusted to reflect
the results of an active duty board that convened in 1996.  The opinion
continues that the applicant was appointed a first lieutenant on 28
September 1995.  Promotion to captain under the 1996 implementation of the
Reserve Officer Promotion Management Act, required 5 years in grade.
Information obtained from the applicant’s official military personnel file
reflect that he was on active duty from 28 September 1993 through
1 February 1997 and then transferred to a TPU.  The applicant’s DD Form 214
shows that he was released from active duty under an early release program-
Special Separation Benefit.  The two OERs reflect an active duty component
board stamp; however, there is no indication whether the applicant was
selected or not.  The advisory opinion recommended further coordination
with the active component.

7.  The advisory opinion concluded by stating that based on the applicant’s
date of rank, he was considered and selected by the 1999 Captain Department
of the Reserve Components (RC) Selection Board, the earliest RC board he
was eligible for based on his date of rank.  The applicant was issued
promotion orders with a date of rank of 18 April 2000.  The applicant also
received a date of rank adjustment based on the Phase 3 Date of Rank
Project to correct the effective date (A date) to 20 March 2000.

8.  A staff member of the Officer Promotion Branch, HRC, Alexandria, VA,
verified that the applicant was considered and not selected for promotion
to captain by the 1996 Fiscal Year Promotion Selection Board.

9.  Army Regulation 600-8-29 prescribes the policies and procedures for
promotion of active duty officers.  This regulation states, in part, that
to be considered for promotion, an officer must be on the active duty list
(ADL) on the date the board convenes.  An officer must completed 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 correction to his date of rank for captain.

2.  The applicant's contention that his date of rank to captain should be
adjusted to 1996 based on his completion of college prior to the convening
of the 1996 active duty promotion board has been noted.  However, the
applicant was
considered but not selected for promotion to captain on the FY 1996
captain’s active duty promotion board.  Therefore, he is not entitled to
have his records corrected to show his date of rank to captain in FY 1996.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 February 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
31 January 2000.  However, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WFC_  ___EEM _  ___RMN_  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.




                                        __William F. Crain_____
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20060006934                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/08                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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