RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 OCTOBER 2006
      DOCKET NUMBER:  AR20060009148


      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. Gale J. Thomas                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald Purcell                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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 correction of his promotion effective date and
date of rank to captain.

2.  The applicant states that due to a misinterpretation of Army
regulations he was not allowed to submit a promotion packet for promotion
to Captain while he was mobilized on active duty.  He was fully qualified
and serving in a Captain's billet at the time of the error.  The error not
only deprived him of pay and benefits at a higher rank, but also resulted
in less time-in-grade at his present rank than his peers.  This in turn
affects his future promotions.  Additionally, serving on active duty at the
lower rank made it more difficult to effectively represent his clients due
to a perceived lack of training and experience.

3.  The applicant provides three letters of support, a copy of his award of
the Army Commendation Medal and the recommending documents, excerpt from
Army Regulation 135-155, a 13 September 2003 Memorandum, "Promotion of
Mobilized U.S. Army Reserve (USAR) Troop Program Unit (TPU) Officers and
Enlisted Soldiers"; and a 15 October 2003 Memorandum suspending the
policies of the previously listed memorandum, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a first lieutenant in the U. S. Army
Reserve (USAR), and signed his oath of office on 22 October 2001.

2.  On 26 January 2003, the applicant was ordered to active duty in support
of Operation Noble Eagle, for a period of 365 days.

3.  In a memorandum dated 17 December 2003, the Assistant Secretary of the
Army for Manpower and Reserve Affairs established promotion policy for
mobilized Reserve Component officers for promotion to the grade of captain
through colonel.  This policy applied to all Reserve Component commissioned
officers mobilized under the provisions of Title 10, United States Code,
sections 12031(a), 12302, and 12304, and who are on an approved mandatory
selection board promotion list.  This policy memorandum is not applicable
to mobilized Reserve Component officers selected for promotion by a
Promotion Vacancy Board (PVB).




4.  He was released from active duty effective 23 January 2004 and
transferred to a USAR troop program unit.

5.  Orders 04-162-0006, dated 10 June 2004, reassigned the applicant to
another Captain position, in another TPU within the command.

6.  The applicant was selected by a PVB which was approved on 28 April
2004.  The applicant was promoted to Captain on 10 June 2004, the date he
was assigned to a higher grade position.

7.  A 26 January 2005, Memorandum to this Board from the applicant's
commanding officer states that the applicant's packet was submitted for
consideration by the May 2003 PVB; however, he was contacted by the Board
Support Branch and informed that the applicant was not eligible for
consideration because he had been assigned to a derivative UIC for
mobilization, and no longer had the same paragraph and line number for the
position for which he had been submitted for promotion.  He was told the
applicant was ineligible for promotion and that he needed to withdraw the
applicant's packet.  His commander withdrew his packet solely because of
the guidance from a member of the Board Support Branch, but now believes
the information was inaccurate, erroneous and in contravention of the
existing promotion regulations for officers assigned to the Judge Advocate
General's Corps.

8.  In the processing of this case an Advisory Opinion was obtained from
the U.S. Army Resources Command – St. Louis, Chief, Special Actions, Office
of Promotions, Reserve Components.  The opinion states that the applicant
did apply for a PVB that convened on 19 May 2003; however, in January 2003,
he was mobilized for 365 days.  He was taken out of the permanent position
for which he was applying as a result of his being mobilized and was
removed from consideration by that board.  In accordance with Army
Regulation 135-155, the position vacancy must be in an authorized position
within the table of organization and equipment or tables of distribution
and allowances TDA/TOE, and the officer must be geographically available to
fill the position.  Being mobilized in a position in a derivative UIC, the
officer was no longer eligible for consideration by a PVB.  It was
recommended that the applicant's date of rank for promotion was correct and
should not be changed.

9.  The opinion was forwarded to the applicant for acknowledgement/rebuttal
on
25 May 2006.  He did not respond.



10.  Army Regulation 135-155, prescribed the policies and procedures for
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 time-in-grade.
 Promotion to fill authorized troop program unit position vacancies may be
filled through promotion of the best qualified and geographically available
officer to the grades of captain through colonel.  All unit officers in the
next lower grade must have met the minimum time in grade for promotion to
the next higher grade and be geographically available to serve in the
position for which considered.  Officers selected for a PVB, but who are
not promoted, will be deleted from the recommended list and will not be
considered to have failed selection of promotion.

11.  Title 10, United States Code, section 12301(d), specifies that at any
time, an authority designated by the Secretary concerned may order a member
of the Reserve Component under his jurisdiction to active duty.

12.  The applicant provides three letters of support attesting to his being
an exceptional officer and attorney.  The three letters of support address
the injustice they feel was suffered by the applicant because of his being
mobilized and denied consideration by the May 2003 PVB.  Had he not been
mobilized he would have been selected for promotion to Captain by the May
2003 board.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to an adjustment in his date of rank to captain from 10 June 2004
to 10 June 2003.

2.  The applicant's packet was submitted to an earlier PVB that convened in
May 2003.  However, in January 2003, prior to the convening of that board,
the applicant was mobilized under Operation Noble Eagle, for 365 days, and
was not eligible for consideration by that board.  To adjust this officer's
date of rank would give him an unfair advantage not afforded other deployed
personnel in like situations.

3.  The applicant's contention that a new policy to permit USAR officers to
be promoted while mobilized has been noted.  However, the new policy is not
applicable to mobilized Reserve Component officers selected for promotion
by a PVB.  The new policy provides for promotion of Reserve Components
officers selected by mandatory promotion boards.  The regulation governing
TPU Vacancy Boards clearly states that the officer being considered must be
geographically available for the position.

4.  It is concluded that the applicant was subsequently assigned to a
vacant captain's position on 10 June 2004 and met all requirements for
promotion; therefore his promotion effective date and date of rank for
captain is correct.

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

__JI   ___  __GP ___  ___KJ  __  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.





                                  ______ John Infante______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009148                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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