RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060011946 


	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.


x
	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 major (MAJ) date of rank (DOR) be adjusted to 19 November 1997.  

2.  The applicant states, in effect, that his date of rank to MAJ should be adjusted to one of the following dates:  the date he entered the Individual Ready Reserve (IRR), which was 4 March 2005; the date he should have been promoted while serving on active duty, which would have been in the Spring of 2003 or 2004; or the date he was promoted to MAJ in the Army National Guard (ARNG).  He claims that in September 1998, after having entered active duty as a captain, he found out he had been promoted to MAJ in the ARNG; however, he declined the promotion at the request of the Army in order to remain on his active duty assignment.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; United States Army Human Resources Command, St. Louis, Missouri (AHRC-St. Louis) Orders Number (#) B-04-603308, dated 
24 April 2006; U.S. AHRC-St. Louis Orders # B-04-603308R, dated 24 April 2006; AHRC-St. Louis Orders # B-05-603901, dated 19 May 2006; Officer Record Brief (DA Form 4037-E); AHRC-St. Louis Memorandum, dated 9 March 2005; Separation Document (DD Form 214); Headquarters, Louisiana National Guard, Office of the Adjutant General, Orders 230-016, dated 18 August 1998; Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty Memorandum, dated 30 October 1997; Notification of Promotion Status Memorandum, dated 23 June 1997; and Request for Correction of DOR Memorandum, dated 19 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he is currently serving on active duty in an Active Guard Reserve (AGR) position in the rank of MAJ.  

2.  On 12 March 1987, the applicant was appointed a first lieutenant in the United States Army Reserve (USAR).  He served in various capacities in the USAR and ARNG until entering active duty on 26 August 1998.  

3.  The applicant's record contains a United States Total Army Personnel Command (PERSCOM), St. Louis, Missouri, (now known as AHRC-St. Louis) Memorandum, dated 23 June 1997, which notified the applicant he had been selected for promotion to MAJ by a Reserve Component Selection Board (RCSB).  
4.  A PERSCOM-St. Louis Memorandum, dated 30 October 1997, notified the National Guard Bureau (NGB) that the applicant was selected for promotion and that he was eligible to be promoted on the later of the following dates:  Promotion Eligibility Date (PED), which was 19 November 1997; Date Federal Recognition is extended in the higher grade; or date following the date Federal Recognition is terminated in current Reserve grade.  

5.  Headquarters, Louisiana, Office of the Adjutant General, Orders Number 
230-016, dated 18 August 1998, promoted the applicant to MAJ with an effective date of 18 August 1998.

6.  On 20 August 1998, the applicant was discharged from the ARNG in order to accept a commission or appointment in another Armed Force, and after declining the ARNG promotion to major, on 26 August 1998, he entered active duty as an obligated volunteer officer for 3 years, in the rank of captain (CPT).   

7.  The applicant was twice considered and not selected for promotion to MAJ while serving on active duty, and on 1 February 2005, he was honorably released from active duty (REFRAD), by reason of non-selection for permanent promotion, and was transferred to the USAR.

8.  AHRC-St. Louis Orders Number B-04-603308, dated 24 April 2006, promoted the applicant to MAJ with an effective date and date of rank of 2 May 2005.  These orders were subsequently revoked by AHRC-St. Louis Orders Number
B-04-603308R, dated 24 April 2006; and on 19 May 2006, AHRC-St. Louis Orders Number B-05-603901 promoted the applicant to MAJ with an effective date and date of rank of 8 September 2005.

9.  On 8 September 2005, the applicant entered active duty in the AGR program, in the rank of major.  

10.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components (RC), AHRC-St. Louis.  This official stated the applicant had been promoted to captain on 20 November 1990, and that based on promotion to major requiring 7 years time in grade, his PED to MAJ was 19 November 1997.  He states that the applicant was considered for promotion by the 1997 Chaplain Major Department of the Army RCSB and recommended for promotion.  In September 1998, prior to his promotion becoming finalized, the applicant went on active duty and the promotion action was transferred to the Active Component (AC).  The AC could have promoted him; however, they chose not to.  
  
11.  On 15 May 2007, the applicant was provided a copy of the AHRC-St. Louis advisory opinion in order to have the opportunity to respond.  To date, he has failed to reply. 

12.  The AHRC-St. Louis promotion official further states that on 1 February 2005, after being twice non-selected for promotion to MAJ in the AC, the applicant was REFRAD and transferred to the IRR; and on 8 September 2005, the applicant was transferred to the AGR and entered active duty in that status, and was subsequently promoted to MAJ on 19 May 2006, and given a date of rank of 8 September 2005, the date he entered a MAJ position.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the ARNG and commissioned and warrant officers (WO) of the USAR.  Section IV, Chapter 4, contains guidance on voluntary delays of promotion.  It states, in pertinent part, the names of officers declining mandatory promotion to the grades of lieutenant colonel and below will be removed from the promotion list.  

14.  Chapter 4 also contains guidance on promotion dates.  It states, in pertinent part, that the effective date and date of promotion, to include officers recommended on a second or subsequent mandatory board, will be no earlier than the approval date of the board and may not precede the date of the promotion memorandum.  Promotion in all RC statuses other than IRR requires the officer to be assigned to a position in the higher grade in order for the promotion to be effected.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that there should be an adjustment to his MAJ DOR was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant voluntarily declined promotion to MAJ in the ARNG in order to enter active duty as an obligated volunteer officer for 3 years, in the rank of CPT.  While serving on active duty, he was twice
non-selected for promotion and as a result he was REFRAD for this reason.  Upon his REFRAD, he was promoted to MAJ effective and with a date of rank of 8 September 2005, which is the date he entered a position authorized the higher grade, as confirmed in the AHRC-St. Louis advisory opinion, in accordance with the applicable law and regulation.  

3.  Given the applicant's voluntary action to decline his initial promotion to MAJ, there appears to be no error or injustice related to his current DOR to MAJ.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x _  __x___  __x___  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.




_____x____
          CHAIRPERSON




INDEX

CASE ID
AR20060011946
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2006/06/05
TYPE OF DISCHARGE
N/A
DATE OF DISCHARGE
N/A
DISCHARGE AUTHORITY
N/A. . . . .  
DISCHARGE REASON
N/A
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz 
ISSUES         1.
131.0000
2.

3.

4.

5.

6.