RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 May 2007
      DOCKET NUMBER:  AR20060012463


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. Thomas E. O;Shaughnessy       |     |Member               |
|     |Mr. James R. Hastie               |     |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, that the effective date of his
promotion to Chief Warrant Officer Four (CW4) be adjusted to 15 January
2006, and that he be provided all back pay and allowances due as a result.


2.  The applicant states, in effect, he was in the Individual Ready Reserve
(IRR) when he was selected for promotion to CW4 by the Fiscal Year 2005 (FY
05) Reserve Component Selection Board (RCSB).  He claims he received
correspondence indicating that his Promotion Eligibility Date (PED) to CW4
was 14 January 2006; however, on 1 October 2005, he went on an extended
active duty (EAD) and was then subject to the command and control of the
active duty and fell under the active duty promotion system.  As a result,
he was not promoted based on his selection by the FY 05 RCSB.  He states
that he was released from active duty and transferred to the IRR on 31 May
2006, and he was promoted effective that date and was assigned a date of
rank of 15 January 2006.  He states that it is his understanding that the
Army G-1 is working to correct this injustice and allow activated
Reservists to be promoted under the Reserve system, but this has been held
up by technical issues.  He claims the new programs being worked on by Army
Human Resources Command (AHRC) will create a remedy and address the
problems associated with the current EAD program.  He is requesting that
the effective date of his promotion be changed from 1 June 2006 to 15
January 2006, and that he be compensated for the difference in pay.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Notification of Promotion Status;
EAD Orders; Active Duty Separation Orders; and Promotion Orders.

CONSIDERATION OF EVIDENCE:

1.  On 24 June 2005, AHRC-Alexandria, Virginia Orders Number A-06-514002
ordered the applicant to active duty under the provisions of Title 10 of
the United States Code, Section 12301, in the rank of Chief Warrant Officer
Three (CW3)  for 101 days, effective 21 June 2005.

2.  On 12 July 2005, the applicant was notified that he had been selected
for promotion to CW4 by a RCSB.  It further indicated that if assigned to a
Troop Program Unit, he must be assigned to a duty position authorized a
grade equal to or higher that the grade in which selected.

3.  On 31 May 2006, the applicant was released from active duty and
transferred back to the IRR.
4.  On 1 June 2006, AHRC, St. Louis, published Orders Number B-06-804038,
which authorized the applicant's promotion to CW4, effective 31 May 2006,
the date he returned to the USAR with a date of rank of 15 January 2006,
his PED.

5.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Special Actions, Office of Promotions, Reserve
Components (RC).  This RC promotion official confirmed the applicant was
selected for promotion to CW4 by the FY 05 RCSB, and that he went on EAD,
which lasted until 31 May 2006.  He states that based on six years time in
grade, the applicant's PED was 15 January 2006, and he was assigned this
date as his date of rank with a 31 May 2006 effective date, which is the
date he came off active duty.  He further states that the applicant's
orders clearly states that he remained on the Reserve Active Status List
(RASL) while he was on active duty and it is recommended that the effective
date of his promotion be adjusted to
15 January 2006, to coincide with his date of rank.  On 26 March 2007, the
applicant concurred with this opinion.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other Than General Officers) regulation prescribes policy and
procedures used for selecting and promoting commissioned officers (other
than commissioned warrant officers) of the Army National Guard of the
United States (ARNGUS) and of commissioned and warrant officers (WO) of the
U.S. Army Reserve (USAR).  Chapter 4 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 require 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 request that the effective date of his promotion be
changed to 15 January 2006 was carefully considered.  However, by
regulation, the effective date of promotion cannot be before the date the
list is approved and/or the date the promotion memorandum is published.  In
this case, the date the promotion memorandum was published, which likely
was also the date the promotion list was approved, was 12 July 2005.  This
was after the applicant had entered active duty on 21 June 2005.
Therefore, he was unable to be promoted from the RCSB list in question
until his release from active duty.

2.  On 31 May 2006, upon his release from active duty and transfer to the
IRR, the applicant was promoted to CW4 and he was granted a date of rank of
15 January 2006, which corresponds with his PED.  Given the facts of this
case, it appears the assignment of the proper date of rank, which will
allow the applicant to compete for promotion with his peers, has eliminated
any injustice that may have resulted from the delay in the applicant's
promotion.

3.  Notwithstanding the advisory opinion recommendation, since the
applicant was ordered to active duty as a CW3 and served in that status
until being released from active duty, it would not be appropriate or in
the interest of all those RC officers who face similar circumstances to
change the effective date of his promotion and/or to provide him pay and
allowances for that period during which he was not serving in a position
authorized the higher grade.

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

__HOF __  __TEO   _  __JRH __  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.




                                  _____Hubert O. Fry________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012463                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/22                              |
|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.                      |                                        |


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