RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2006
      DOCKET NUMBER:  AR20060013641


      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:

|     |Ms. Marla J. N. Troup             |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John G. Heck                  |     |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, adjustment of his date of rank (DOR)
for captain from 12 June 2001 to 12 December 1999.

2.  The applicant states, in effect, that his DOR should be adjusted to a
date that reflects a maximum of 7 combined years of service as a second and
first lieutenant.

3.  The applicant provides copies of his ARPC Form 155-R (Promotion
Qualification Statement), his completion documents for his baccalaureate
degree and officer basic course, his appointment memorandum, and his
promotion memorandums for first lieutenant and captain, in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 June 2001, his promotion effective date and date of rank for
captain. The application submitted in this case is dated 13 September 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show that he was appointed in the
United States Army Reserve, as a second lieutenant, effective 15 August
1994.  He was promoted to first lieutenant effective 1 October 1996.

4.  He was considered and selected for promotion to captain by the 2000
Reserve Components Selection Board (RCSB), which convened on 13 November
and recessed on 15 December 2000.  The President approved the board results
on 20 March 2001.

5.  His ARPC Form 155-R verifies that he was assigned to a captain's
position effective 12 June 2001 and met all the qualifications for
promotion on that date.

6.  He was issued promotion order, dated 3 October 2001, showing his
promotion to captain with a promotion effective date and date of rank of 12
June 2001.

7.  Based on the maximum of 7 combined years of service as a first and
second lieutenant, his maximum years of service in grade (MYIG) for
promotion to captain was 14 August 2001.

8.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary
(Manpower and Reserve Affairs) acknowledged that pertinent Army agencies
had agreed that the faulty promotion policy for promotion to captain should
be revised, and that actions would be initiated for this purpose.  He
further stated that affected individuals would be advised they could seek
relief from the Army Board for Correction of Military Records (ABCMR) which
could adjust DOR’s for those who were first-time considered and selected
for promotion to captain, after having served more than 7 combined MYIG as
a lieutenant.

9.  The Reserve Officer Personnel Management Act (ROPMA) prescribed the
policies and procedures to consolidate and modernize the laws governing the
management of Reserve component officers.  The law was implemented on
1 October 1996.  ROPMA provides that a second lieutenant serve a MYIG of
2 years before promotion to first lieutenant, and a first lieutenant serve
a MYIG of 5 years before promotion to captain and that an officer selected
for the first time for promotion to captain may be promoted on or before
the date that he/she completes the MYIG.  ROPMA further specifies that the
officer must be serving in a position requiring the higher grade or
assigned to the Individual Ready Reserve.  Promotion cannot be effective
prior to approval of respective boards by the President.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to adjustment to his date of rank for captain to 12 December 1999.
 He has not shown error, injustice, or inequity for the relief he now
requests.

2.  The applicant's contention that that his DOR for captain should be
adjusted to a date that reflects a maximum of 7 combined years service as a
second and first lieutenant has been noted.  However, based on his
appointment effective date of 15 August 1994 and completion of 7 combined
MYIG as a second and first lieutenant, he completed 7 combined MYIG as a
lieutenant on 14 August 2001.   He was promoted to captain based on his
assignment to a captain's position on 12 June 2001.  Therefore, the
applicant was promoted to captain on the earliest
date he met all the requirements for promotion and in a timely manner.  His
promotion date of 12 June 2001 is prior to his MYIG date established by
ROPMA.

3.  In view of the foregoing, there is no basis for granting the
applicant's request.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 June 2001, his promotion effective
date and date of rank for captain; therefore, the time for the applicant to
file a request for correction of any error or injustice expired on 11 June
2004.  The applicant did not file within the 3-year statute of limitations
and has not provided a compelling explanation or evidence to show that it
would be in the interest of justice to excuse failure to timely file in
this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RR____  _T _____  __JGH___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  _____Marla Troup   _____
                                            CHAIRPERSON
|CASE ID                 |AR20060013641                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061026                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.01                                  |
|2.                      |131.05                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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