RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060015004


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland S. Venable             |     |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 his lieutenant colonel (LTC)
date of rank (DOR) be changed to a date prior to 31 March 2004.

2.  The applicant states, in effect, that he was selected for promotion to
LTC and his name was on the 26 January 2004 Promotion List.  He claims to
have started working in a LTC Active Guard Reserve (AGR) position without
official orders.  He states that he was on orders to go to the Pentagon
with an arrival date of April 2004 and if his record is not corrected, he
will spend 4 years and 11 months as a LTC, while his peers will spend 3
years and 7 months.

3.  The applicant provides the following 10 attachments in support of his
application:  Self-Authored Memorandum to the ABCMR; Notification of
Selection for Deputy Commander Position; Electronic Mail (e-mail) Messages
on Double Slotting; Messages on Cancellation of Pentagon Assignment and on
Assignment to Deputy Commander Position; Double Slot Orders; LTC Promotion
Orders; Reserve Component Selection Board (RCSB) Promotion Zones; RCSB
Colonel Schedule; Retirement Points Sheet; and Officer Records Brief (ORB).


CONSIDERATION OF EVIDENCE:

1.  The applicant's ORB shows he is currently holding the rank of LTC with
a DOR of 21 April 2004, and is serving as a Deputy Commander of a Military
Intelligence Group in Europe.

2.  The applicant was considered and selected for promotion by the
2003 Department of the Army (DA) RCSB.  The recommendations were approved
by the President on 26 January 2004, and were released on
19 February 2004.

3.  HRC-St. Louis Orders Number R-04-473023, dated 21 April 2004, attached
the applicant to a LTC position with Headquarters, 7th Army Reserve
Command, Europe, effective 21 April 2004.

4.  On 23 April 2004, a Promotion Memorandum was published by the Chief,
Office of Promotions, RC, HRC-St. Louis, which promoted the applicant to
LTC, effective 26 January 2004.

5.  On 26 April 2004, the Chief, Office of Promotions, RC, HRC-St. Louis
published a corrected Promotion Memorandum on the applicant, which changed
the effective date of his promotion to 21 April 2004.

6.  During the processing of this case, an advisory opinion was obtained
from the Chief, Special Actions Branch, Officer of Promotions, RC, HRC-St.
Louis.  This official confirmed the applicant was selected for promotion by
the 2003 LTC RCSB, which was approved by the President on 26 January 2004.
He further indicated that the Officer Management Division (OMD), HRC-St.
Louis initially confirmed the applicant was placed in a position authorized
the higher rank, but did not stipulate an effective date.  As a result, a
promotion memorandum on the applicant was issued on 23 April 2004, which
assigned the applicant a DOR of 26 January 2004, the date the President
approved the Board.

7.  The HRC-St. Louis advisory opinion further indicates that RC promotion
officials were later informed by Officer Management Division that the
applicant had not been placed in the LTC position until 21 April 2004.  As
a result, a corrected promotion memorandum was issued on 26 April 2006,
showing the applicant's DOR as 21 April 2004, the date he assumed the
position in the higher grade.  This official finally recommends the
applicant's request be denied and indicates that it should be noted the
applicant was promoted 7 months early.

8.  On 8 February 2007, the applicant provided a rebuttal to the HRC-St.
Louis advisory opinion.  The applicant asserts that the comment contained
in the advisory opinion that he was promoted 7 months early was apparently
based upon the erroneous assertion in paragraph 1 that promotion to LTC
requires
7 years time in grade, and as a result, his promotion eligibility date was
24 November 2004.  He asserts that both of the conclusion of the advisory
opinion and the underlying assumption are inaccurate.  He claims that
although the maximum time in grade requirement for promotion to LTC
contained in the  governing regulation is 7 years, it also provides a
minimum time in grade requirement for promotion to LTC of 4 years.

9.  The applicant further claims that following the release for the
promotion list, he began working in a previously vacant LTC position with
the 7th Army Reserve Command on 4 February 2006, and has continuously
worked in a LTC position since that date.  He claims his LTC DOR was
originally set as 29 January 2004, but for unexplained reasons his branch
did not prepare new assignment orders reflecting his promotion to LTC until
April of 2004.

10.  The applicant summarizes his rebuttal by stating that he was properly
selected for promotion and included in the January 2004 promotion list; he
was properly awarded an initial DOR of 26 January 2004; and he has served
in an
0-5 position since 4 February 2004.  Therefore, the adjustment of his DOR
to 21 April 2004 was inappropriate and will result in an unjust hardship
upon his career if not corrected.

11.  The applicant provides electronic mail (e-mail) messages, dated
between
25 March and 21 April 2004.  These messages between the applicant and HRC-
St. Louis officials show he was attempting to be double slotted in a LTC
position. The final e-mail message confirming he was assigned/attached to a
LTC position is dated 21 April 2004, which was the effective date of his
promotion.

12.  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
Army National Guard of the United States (ARNGUS) and of commissioned and
warrant officers (WO) of the U.S. Army Reserve (USAR).

13.  Chapter 2, Section III (Board Consideration) of the promotions
regulation states, in pertinent part, that boards will convene each year
and will consider officers on the Reserve Active Status List (RASL) for
promotion to captain through LTC without regard to vacancies in the next
higher grade.  It also states, in pertinent part, that the first
consideration for promotion will occur well in advance of the date the
officer will complete the time in grade (TIG) requirements.  Table 2-1
shows the maximum years in lower grade (MYIG) requirement for promotion to
LTC is announced annually and is normally five years, subject to the needs
of the Army.

14.  Chapter 4, Section I (General) of the same regulation states, in
pertinent part, that a USAR AGR officer considered and selected by a
mandatory promotion board, can voluntarily leave the AGR program and accept
promotion in the higher grade, or the officer can remain in the current
grade in the AGR program.  Officers who remain in the USAR AGR program will
be considered to be in an indefinite involuntary delay status.

15.  Chapter 4, Section III (Dates of Promotion), of the promotions
regulation states, in pertinent part, that the effective date of promotion
for commissioned officers may not precede the date on which the promotion
memorandum is issued, and the promotion memorandum will not be issued prior
to promotion board results being approved and/or confirmed by the Senate if
required.  By law (Title 10 of the United States Code, section 12203)
states RC officers on a promotion list will be promoted when the RCSB is
approved by the President.

16.  The promotion regulation also stipulates the officer must already be
assigned/attached to a position in the higher grade or, if an IRR/IMA
officer selected by a mandatory promotion board, have completed the maximum
years of service in grade in the current grade.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his LTC DOR should be corrected to a
date prior to 31 March 2004 was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  By law and regulation, an officer may not be promoted until the
promotion list has been signed by the President, and the officer must
already be assigned/attached to a position in the higher grade to be
promoted.  AGR officers who are not assigned/attached to a position
requiring the higher grade may transfer out of the AGR to accept the
promotion immediately.  Officers who remain in the USAR AGR program will be
considered to be in an indefinite involuntary delay status.

3.  The operative provisions of the applicable law and regulation in this
case are those that apply to AGR officers.  In this case, the applicant was
eligible to be promoted once he occupied a position requiring the higher
grade, in this case LTC.  Absent his formal assignment/attachment to a LTC
position in the AGR, he had the option of transferring out of the AGR to
accept the promotion immediately, or to remain in a promotion delay status
until he was placed in a LTC position.

4.  In this case, the HRC-St. Louis OMD confirmed the applicant was not
assigned or attached to a LTC position until 21 April 2004, which was the
date appropriately used to establish his promotion date and DOR to LTC.
Absent any evidence confirming he was formally assigned to a LTC position
prior to 21 April 2004, as he contends, there is an insufficient
evidentiary basis to support granting the requested relief.

5.  The applicant's contention that his DOR places him behind his peers was
also carefully considered.  However, there is no evidence of record, or
independent evidence provided by the applicant that shows his processing
was improper or inequitable.  The promotion provision applied in his case,
which required him to be occupying a position in the higher grade to be
promoted, is equally applicable to all AGR officers who were on the same
promotion list and who faced similar circumstances.  Therefore, there is
insufficient evidence to support this claim.

6. 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

__JEA  __  __SWF__  __RSV__  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.




                                  _____James E. Anderholm_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015004                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/06                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |102.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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