RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20060007310


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 reconsideration by a
Position Vacancy Board (PVB).

2.  The applicant states, in effect, he would like promotion
reconsideration during the September 2004 troop program unit (TPU) PVB.  He
also states that, but for the inability of the Civil Affairs and
Psychological Operations Command's (USACAPOC) administrative chain of
command to get his packet to the September 2004 and March 2005 PVBs, he
believes he would have been promoted.  He believes his credentials indicate
that he is as qualified as those who were promoted during those boards.  He
further states that he had exhausted all other administrative remedies
prior to this submission to the Army Board for Correction of Military
Records (ABCMR).

3.  The applicant also states that he submitted a promotion packet in
accordance with guidelines in April 2004 for the September 2004 TPU PVB.
This packet was never forwarded to the board due to the administrative
failures of the USACAPOC.  Frustrated but undaunted, in September 2004, he
submitted a packet for the March 2005 TPU PVB.  Again, USACAPOC was unable
to administratively move the packet to the Board.  In a fit of desperation,
in December 2004, he requested a transfer to enable him to submit a packet
thru a different chain of command.  Unfortunately, due to the USACAPOC's
ever changing transfer policies, the transfer was not effective until
October 2005.  The end result is that the TPU PVB, which is used to advance
deserving officers and increase morale, has had the opposite result.

4.  The applicant provides copies of his PVB packets for 2004 and 2005, his
request for reconsideration memorandum to the Human Resources Command
(HRC), and information relating to the September 2004 PVB, the March 2005
PBV, and the September 2005 PVB, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United
States Army Reserve, Judge Advocate General's Corps (JAGC), as a first
lieutenant, effective 6 August 1997.

2.  On 22 May 2002, the ABCMR recommended his date or rank to captain be
adjusted to 25 June 2000, under the Reserve Officer Personnel Management
Act Project.

3.  On 14 April 2004, the Commander, 418th CA Battalion (BN), recommended
the applicant for a USAR Unit Vacancy Promotion to major.

4.  On 19 April 2004, the Staff Judge Advocate, USACAPOC, endorsed the
applicant's selection as a major at the 418th CA BN, in the International
Law billet, via the PVB.

5.  In email correspondence, dated 14 August 2004, the applicant contacted
his commander to see if he had any luck with contacting the board support
personnel in St. Louis on the September PVB.  The applicant also stated
that he would like to find out what went wrong on the promotion packet
moving through his chain.

6.  In email correspondence, dated 17 August 2004, the applicant's
commander advised him that the G1 for the 351 (sic) (351st CA Command) had
recently been replaced for various reasons, boards being one of them.  It
appeared that "the 351 and not the 321 were the toad in the road for the
last packet."

7.  In email correspondence, dated 19 August 2004, the applicant was
advised that his promotion recommendation was returned from the 321st CA
Brigade without action.  The reason that LTC ______ annotated was that it
was not submitted in time for the cutoff for the vacancy list.  COL ______
needed to know the exact date the packet was mailed to the 321st CA
Brigade.

8.  In email correspondence, dated 5 November 2004, the applicant's
commander advised him that he had submitted his slot through the 353rd CA
Command and was tracking the status because he supported the applicant's
promotion to major.

9.  In email correspondence, dated 5 November 2004, the applicant replied
to his commander that he had been advised it would be unfair to have a PVB
when they were deploying next spring.  The applicant also stated that he
was in the process of talking to other units closer to Indianapolis.  He
stated that even if he remained with the 418th, there was no reason to hold
a slot that he would be unable to fill until his regular board.

10.  The applicant was reassigned to a TPU outside his command effective
26 October 2005.

11.  In a memorandum to the Commander, HRC, St. Louis, dated 21 March 2006,
the applicant requested reconsideration of the September 2004 TPU PVB

for the rank of major.  He stated that his request was based upon the
belief that he would have compared favorably to those selected during that
board had his packet not been lost in an administrative limbo associated
with the USACAPOC. Should the request for reconsideration be denied, he
requested reconsideration of the March 2005 TPU PVB based on the foregoing
belief.  Should both requests be denied, he requested for reconsideration
of the September 2005 TPU PVB.  He further stated that he understood that
PVBs are not mandatory.  However, as they are available to some, all
soldiers should have the same opportunity to compete and not be
disadvantaged by the command's failure to process the packets in a
competent manner.

12.  The applicant submitted copies of his promotion packets that he
submitted to the September 2004 and March 2005 PVBs.

13.  In an advisory opinion, dated 30 June 2006, the Chief, Special
Actions, Office of Promotions, Reserve Components, HRC, St. Louis,
Missouri, stated that information obtained from the USACAPOC's, Reserve
Officer Management Office, Fort Bragg, North Carolina, showed there was no
evidence that the applicant's command submitted a promotion packet from
March 2004 to present.  PVBs are a commander initiated action to get a unit
up to readiness posture.  Any commander along the administrative chain of
command can stop a PVB action.  In addition, the Reserve Officer Management
Office states that the command did not request any 27A positions to be
filled by the PVB in September 2004 or March 2005.

14.  The advisory opinion was forwarded to the applicant for acknowledgment
and/or rebuttal on 12 July 2006.  In his rebuttal, dated 18 July 2006, the
applicant stated that but for the inability of the Command to competently
process the application, a valid, qualified, and competitive packet would
have been considered by the September 2004 or March 2005 PVBs.  He
submitted evidence of the packets being submitted in a timely manner with
his initial request to the ABCMR.  He also stated that LTC ___________,
then the commander of the 418th CA BN, initiated the action associated with
the PVB.  The BN was authorized an International Law Officer at the rank of
major.  The request to fill this position is noted in DA Form 2464-R of the
initial submission to the ABCMR.  LTC __________ indicated in electronic
mail correspondence his desire to assist with problems associated with the
application process and his support of the promotion.

15.  The applicant further states that there was no evidence that any
commanders within his chain stopped either of the PVB actions.  The
applications for both the September 2004 PVB and March 2005 PVB were
stopped due to failures within the administrative process of the 351st CA
Command.  The command cannot request a 27A position if the packet is not
processed up through the chain.  Additionally, the position was approved by
the Staff Judge Advocate General of USACAPOC.  The International Law
Officer position within the 418th CA BN was a major's position.  He held
that position from August 1997 through October 2005, initially as a first
lieutenant and then as a captain.  He believes he was qualified to hold the
position at the rank that it was listed, and within the timelines that the
PVB would have allowed.  He believes his military record was comparable to
any of those officers promoted during the PVBs in question.

16.  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 (TIG).  Promotion to fill authorized valid position vacancies may
be filled through promotion of the best-qualified and geographically
available officer to the grades of captain through colonel.  All officers
in the next lower grade must have met the minimum TIG for promotion to the
next higher grade and be geographically (non-mobilized) available to serve
in the position for which considered.  JAGC officers can be considered for
promotion to fill vacancies only within their branch.

17.  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.  An officer is not
eligible for consideration if he or she was not approved for the position
per Army Regulation 140-10.

18.  Army Regulation 135-155 also specifies that special selection boards
(SSB) will convene and consider commissioned officers who were erroneously
not considered and reconsider commissioned officers who were considered but
not selected by mandatory promotion boards (both not applicable to this
applicant).   The regulation does not provide for promotion consideration
by a special selection board (SSB) for erroneous non-consideration by a
PVB, only by a mandatory promotion board.



DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to promotion reconsideration by a PVB.
He has not shown error, injustice, or inequity for the relief he is now
requesting.

2.  The applicant's contention that he was denied consideration by the
September 2004 and March 2005 TPU PVB has been noted.  However, information
received from the USACAPOC's Reserve Officer Management Office, Fort Bragg,
does not show the applicant's command submitted a promotion packet from
March 2004 to present.  Documentation submitted by the applicant shows the
applicant forwarded promotion packets for consideration by the September
2004 and March 2005 TPU PVBs and it was the intent of his commander to
submit a slot for the applicant's promotion to major by a PVB.  However,
the applicant has not sufficiently shown that the position he was occupying
had been determined to be a valid position vacancy, which existed within
his command, eligible for fill through the PVB process.  The applicant also
has not provided sufficient information to show that the position he was
assigned to was the only position available to fill through the PVB
process.

3.  It is concluded that the applicant has not sufficiently shown that he
was prevented from equitable promotion consideration by the September 2004
and March 2005 TPU PVBs and had he been considered, a reasonable chance
would have resulted that he would have been selected and consequently
promoted.

4.  It is also noted that pertinent regulations do not provide for
promotion consideration by a special selection board for erroneous non-
consideration by a PVB.

5.  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

___SLP _  _RML ___  __JGH__  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.




                                  _____Shirley L. Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007310                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.10                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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