RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060011296 


	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.  



	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 (DOR) for major from 2 July 2006 to 8 June 2005.

2.  The applicant states that due to the implementation of the Reserve Officer Personnel Management Act (ROPMA) his promotion for captain was delayed until corrected by the Army Board for Correction of Military Records (ABCMR) from 25 July 2000 to 25 July 1999.  Based on the ABCMR correction, he was in the zone for promotion consideration by the 2005 Department of the Army (DA) Major Reserve Components Selection Board (RCSB).  Because his file was omitted, he requested a DA Special Selection Board (SSB) and the SSB recommended him for promotion to major using the 2005 criteria with a promotion eligibility date of 23 July 2006, based on 7 years time in grade (TIG).  Prior to the SSB the applicant was selected for promotion by the 2006 DA MAJ RCSB and promoted with a DOR of 2 July 2006, the date of his deployment in a higher graded position.  The applicant contends that he should be given a DOR of 8 June 2005, the date the 2005 DA MAJ RCSB was released, because he was selected for promotion by the SSB under the 2005 criteria.  Further, because he was mobilized, he was not in a MAJ position due to no fault of his own. 

3.  The applicant provides copies of his promotion memorandum order to captain, his ABCMR Proceedings, his SSB consideration memorandum, his promotion memorandum and promotion orders for MAJ, a series of electronic mail regarding his promotion DOR, and his active duty assignment orders in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that after prior enlisted service in both the Regular Army and Army National Guard (ARNG), he was appointed in the Connecticut (CT) ARNG as a second lieutenant effective 25 July 1992.  He was promoted to first lieutenant effective 24 July 1995 and captain on 25 July 2000.

2.  The applicant was separated from the CTARNG effective 1 October 2000 and transferred to the United States Army Reserve Control Group (Reinforcement).

3.  The applicant was reassigned to a Reserve unit effective 23 January 2001.  
He was ordered to active duty in support of Operation Noble Eagle effective
13 October 2001. 

4.  The applicant was ordered to active duty in an Active Guard Reserve (AGR) status effective 18 October 2003.  On 15 September 2006, he was mobilized in support of Operation Iraqi Freedom.

5.  On 25 October 2005, the ABCMR recommended adjustment to his promotion effective date and date of rank for captain to 24 July 1999 under the ROPMA Project.  He was issued a corrected promotion order, dated 10 November 2005, indicating his promotion effective date and DOR for captain was 24 July 1999.

6.  On 21 November 2005, the applicant requested a SSB review of his file for promotion to MAJ based on 2005 DA RCSB Promotion Board criteria.  That board convened on 8 March and recessed on 25 March.  The President approved the board results on 8 June 2005. 

7.  The applicant was considered and selected for promotion to MAJ by the 2006 DA RCSB that convened on 14 March and recessed on 28 March 2006.  The President approved the board results on 7 June 2006.

8.  The applicant was issued a promotion consideration memorandum, dated
26 September 2006, indicating that an SSB had recommended him for promotion to MAJ with an effective date and DOR for MAJ as 23 July 2006.  The memorandum also advised that under ROPMA the earliest date he could have was the approval date of the criteria year that he was recommended under, provided that he was in an AGR position at the time, otherwise the date he was assigned to a position became his date of rank.

9.  Based on the correction to his date of rank for captain to 24 July 1999 and the required 7 years maximum time in grade (MTIG) for promotion to MAJ, his MITG date was 23 July 2006.

10.  He was issued promotion orders, dated 30 June 2006, indicating his promotion to MAJ by a SSB with a promotion effective date and DOR for MAJ of 2 July 2006, the date of his assignment to an AGR major's position.  

11.  In processing this case an advisory opinion was obtained from Chief, Special Actions Branch, Office of Promotions, Reserve Components, U.S. Army Human Resources Command, St. Louis, which indicated that the earliest DOR the applicant is eligible for is 2 July 2006, the date he was assigned to a higher graded position prior to deployment.  The applicant was provided a copy of this opinion on 22 March 2007.

12.  On 14 April 2007, the applicant provided a rebuttal to the advisory opinion, indicating that through no fault of his own he could not be promoted in June 2005 because he was still assigned to a captain's position.  As early as August 2005, he requested a move to a MAJ position, but due to mobilization it was not possible.  He contends that his DOR should be the date the 2005 DA MAJ RCSB was released because an SSB considered and selected him for promotion under 2005 criteria.

13.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that officers selected by a SSB are eligible for the same date of rank that they would have received by the original board (approval date) in which the error occurred or they should have been considered.  It also specifies that promotion may only be effective upon positioning in the higher grade for AGR officers or assignment to the Individual Ready Reserve or the Individual Mobilization Augmentee.  Promotion can not be earlier than the Presidential approval date of the original board.  

14.  Army Regulation 135-155 also specifies that an officer is promoted after selection if all qualifications for promotions are met.  When an officer does not meet the qualification for promotion, the promotion effective date and date of rank may be advanced to the date qualifications are met.

15.  Title 10, United States Code, Section 14502(e)(2) specifies that an officer promoted to the next higher grade, as the result of the recommendation of a SSB convened under this section shall, upon such promotion, have the same date of rank, same effective date for pay and allowances of that grade, as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a correction to his date of rank for MAJ from 2 July 2006 to 8 June 2005.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant contends that his DOR should be the same DOR as he would have had if he had been recommended for promotion to that grade by the selection board which should have considered him, and not been selected by a SSB.  However, given the regulatory guidance above, his promotion effective date and DOR for MAJ was contingent upon his assignment to an AGR major's position.  The evidence shows that he was not assigned to an AGR's major's position until 2 July 2006.  Therefore, his promotion effective date and DOR rank was correctly established as the date he met all the requirements for promotion to major. 

3.  The applicant has not satisfactorily shown that he was assigned to an AGR major's position or met all the requirements for promotion to major in June 2005.  Therefore, he is not entitled to an earlier date of DOR.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  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

__lds___  __jlp___  __els___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011296
SUFFIX

RECON

DATE BOARDED
20070508
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
102.0700
2.

3.

4.

5.

6.