RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      12 December 2006
      DOCKET NUMBER:  AR20060012131


      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:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 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, an adjustment of his date of rank
for major from 6 May 2001 to 6 May 2000 and promotion consideration to
lieutenant colonel by a special selection board (SSB).

2.  The applicant states, in effect, that his argument is based on the
provisions of Title 10, United States Code (USC), section 14304 and Army
Regulation
135-155.  He also states that on 19 May 1993 he was promoted to captain.
Under the provisions of the Reserve Officer Personnel Management Act
(ROPMA), the maximum years in grade (MYIG) for a United States Army Reserve
(USAR) captain is 7 years.  Based on this provision, he should have been
eligible for promotion to major on 18 May 2000 and considered by the 1999
Reserve Components Selection Board (RCSB).  He further states that he was
considered and selected for promotion to major by the 2000 RCSB.  The board
convened on 7 March 2000 and the results were approved and signed by the
President on 19 July 2000.  A corrected date of rank of 6 May 2000 would
have enabled him to be considered by the 2006 Lieutenant Colonel RCSB.
However, since the adjudication of this request would most likely occur
after the 2007 board has convened and adjourned, he should be allowed to be
considered by a SSB.

3.  The applicant provides copies of his appointment memorandum and his
promotion memorandums for captain and major, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR, as
a second lieutenant, effective 11 May 1985.

2.  He was promoted to captain effective 19 May 1993.  Based on the
completion of 12 years time in service (TIS) and 7 years time in grade
(TIG), his promotion eligibility date (PED) for major was 18 May 2000, the
latter of the two dates (12 years TIS from his appointment date or 7 years
TIG from his promotion to captain).

3.  He was reassigned to the 311th Theater Signal Command (TSC) effective
22 January 1999.

4.  He was considered and selected for promotion to major by the 2000 RCSB
that convened on 7 March and recessed on 6 April 2000.  The President
approved the board results on 19 July 2000.

5.  The Soldier Management System (SMS), Office of Promotions, Reserve
Components, Human Resources Command (HRC), St. Louis, Missouri, shows that
on 17 October 2000, the 311th TSC suspended the applicant's selection by
the 2000 RCSB because the applicant was not in a higher graded position,
had failed the Army Physical Fitness Test (APFT), and had received a DA
Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)).

6.  The SMS also shows that on 3 November 2001, the 311th TSC submitted a
request to delay the applicant's promotion to major to 17 May 2001, due to
his APFT failure and no higher graded position assignment.  On 15 May 2001,
the 311th TSC submitted an ARPC 155 (Promotion Qualification Statement) and
DA Form 268 removing the flagging action effective 6 May 2001.

7.  The applicant was issued a promotion memorandum, dated 8 May 2001,
indicating his promotion to major with a promotion effective date and date
of rank of 6 May 2001, the date the FLAG was removed.

8.  The applicant is currently serving on active duty in support of
Operation Noble Eagle.

9.  In an advisory opinion, dated 31 October 2006, the Chief, Special
Actions Branch, Office of Promotions, Reserve Components, HRC, St. Louis,
Missouri, stated that the applicant was promoted to captain on 19 May 1993.
 Promotion to major requires 7 years TIG.  He was considered for promotion
to major by the 2000 RCSB and recommended.  Information available in the
Office of Promotions indicated that the applicant was not promoted on time
because he was not in a higher graded position and was flagged for APFT
failure.  Additionally, the applicant requested an official delay in
promotion until 17 May 2001.  Based on this information, it was recommended
the applicant's request be denied.

10.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 3 November 2006.  In his rebuttal, dated
15 November 2006, the applicant stated, in effect, that the opinion failed
to acknowledge that his consideration for promotion did not occur far
enough in advance of his effective date to be on or before the date he
completed 7 years of service.  Title 10, USC, section 14303, paragraph (b)
states, "an officer who is recommended for promotion to the next higher
grade by a selection board who is placed on an approved promotion list
shall be promoted, without regard to the existence of a vacancy, on the
date on which the officer completes the maximum years of service in grade
(MYIG)."  He was considered and selected by the 2000 RCSB.  Under the
provisions of ROPMA, the MYIG was 7 years, his date of rank for captain was
19 May 1993, which established his MYIG to major as 18 May 2000. Therefore,
he should have been promoted effective 18 May 2000.  At that time, there
were no unfavorable actions against him or declination of promotion, and a
higher graded position was not required for promotion.

11.  Army Regulation 135-155, in effect at the time and prior to the ROPMA,
prescribed the policies and procedures for the promotion of Reserve
components officers.  The regulation specified that completion of 7 years
TIG and 12 years TIS was required before promotion to major.  Officers
would be promoted on the latter of the TIG and TIS dates.  In addition, the
regulation specified that a troop program unit officer must be serving in
the higher graded position prior to promotion to captain, major, and
lieutenant colonel.

12.  The ROPMA and Army Regulation 135-155, effective 1 October 1996,
prescribe the policies and procedures to consolidate and modernize the laws
governing the management of promotions for Reserve components officers.
ROPMA specifies that a captain serve a maximum TIG of 7 years before
promotion to major, and a major serve a maximum TIG of 7 years before
promotion to lieutenant colonel.  The provisions of ROPMA no longer require
completion of TIS years before promotion to the next higher grade.

13.  ROPMA and Army Regulation 135-155 also specify that an officer
selected for the first time for promotion to the next higher grade may be
promoted on or before the date that he/she completes the maximum service.
Troop program unit officers must be serving in a position requiring the
higher grade or assigned to the Individual Ready Reserve or an Individual
Mobilization Augmentee position.  Promotion cannot be effective prior to
approval of respective boards by the President.

14.  Army Regulation 135-155, paragraph 4-11a (3-5), specifies that the
officer must be medically qualified, have undergone a favorable security
screening, and must meet standards of the Army Body Composition Program.
Paragraph 4-13 specifies that promotion authorities will ensure that a
favorable security screening is completed before announcing a promotion.
The military personnel records jacket will be screened to ensure that
derogatory or unfavorable suitability information is not contained therein
for promotion purposes.  If the results of this screening are favorable,
final promotion action may proceed.

15.  Army Regulation 135-155, paragraph 418, the Chief, Office of
Promotions, Reserve Components, HRC, St. Louis, is authorized to adjust the
promotion effective date and date of rank for an officer whose promotion
has been delayed. For officers not in compliance with the height/weight
standards or who fail to pass the APFT, the promotion effective date and
date of rank will be the day the officer complies with the standards and
passes the APFT.

16.  Army Regulation 135-155, also specifies that promotion consideration
or reconsideration by a SSB may only be based on erroneous non-
consideration or material error, which existed in the record at the time of
consideration.

17.  Title 10, USC, section 14304(a) specifies that officers shall be
placed in the promotion zone and shall be considered for promotion to the
next higher grade by a promotion board convened under section 14101(a) of
this title, far enough in advance of completing the MYIG so that, if the
officer is recommended for promotion, the promotion may be effective on or
before the date on which the officer will complete those years of service.
The established MYIG for promotion from captain to major is 7 years.
Paragraph (b) states, in effect, that a Reserve components officer who is
recommended for promotion to the next higher grade by a selection board the
first time they are considered for promotion and who is placed on an
approved promotion list shall be promoted, without regard to the existence
of a vacancy, on the date on which the officer completes the MYIG specified
in this law.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to an adjustment of his date of rank for major from 6 May 2001 to
6 May 2000.
He has not shown error, injustice, or inequity for the relief he now
requests.

2.  The applicant's contentions have been noted; however, based on a review
of his records and information recorded in the SMS, favorable personnel
actions were suspended and the applicant's unit requested a delay in his
promotion.  The applicant's unit removed the FLAG on 6 May 2001 and
submitted documentation verifying the applicant met all the requirements
for promotion to major on that date.  Therefore 6 May 2001, was the
earliest date he could have been promoted.

3.  The evidence of record does not show, and the applicant has not
satisfactorily shown, that he met all the requirements for promotion to
major prior to his promotion date.  Without evidence, it cannot be
concluded that he met all qualifications for promotion to major on his PED.
 The MYIG provisions of law does not preclude promotion without regard to
the existence a vacancy; however, in accordance with pertinent regulations,
an officer selected for promotion must not be under suspension of favorable
personnel actions.

4.  The applicant was considered in advance of his MYIG date for major;
however, at the time of his selection he was not fully qualified to be
promoted.  It is also concluded that he was appropriately promoted to major
on 6 May 2001; therefore, he does not have a basis for consideration for
promotion to lieutenant colonel by a SSB.

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

__ALR __  __QAS_    __FCJ___  DENY APPLICATION


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.




                                  _____Allen L. Raub _______
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20060002131                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.01                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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