RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 January 2007
      DOCKET NUMBER:  AR20060015925


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Roland 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 adjustment to his date of rank (DOR) for captain
from 8 August 2001 to 11 July 1997.

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
lieutenant.  He also states that he was not aware of the procedures for
obtaining a correction to his DOR for captain.  He had not received
notification of the process, probably due to changes in his home address
during this timeframe.

3.  The applicant provides copies of a USARC Form 56-R (Promotion
Qualification Statement), his Bachelor of Science degree, his
appointment memorandum, his completion document for the officer basic
course, and his promotion memorandums for first lieutenant and captain,
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 August 2001, the date of his promotion to captain.  The
application submitted in this case is dated 29 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 22 July 1990.
 He was promoted to first lieutenant effective 21 July 1993.

4.  His USARC Form 56-R verifies that he was assigned to a captain's
position effective 13 July 1996.

5.  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 21 July 1997.

6.  The applicant was considered and selected for promotion to captain by
the 1997 Reserve Components Selection Board (RCSB), which convened on
13 November and recessed on 12 December 1997.  The President approved the
board results on 25 June 1998.  Based on his MYIG he should have been
considered by the 1996 RCSB that the President approved on 12 June 1998.

7.  The applicant's records show that he completed the required military
and civilian education for promotion prior to being promoted to captain and
prior to his eligibility (MYIG) date.  The Promotion Qualification
Statement submitted by the applicant verified the required position
assignment, active status, medical qualification, and security clearance
for promotion purposes.

8.  The applicant was promoted to captain effective 8 August 2001.

9.  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.

10.  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.  ROPMA specified 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.
 The Reserve Officer Personnel Act in effect prior to ROPMA required
completion of 3 years as a second lieutenant and 4 years as a first
lieutenant before promotion to captain.

11.  ROPMA further specifies that the officer must be serving in a position
requiring the higher grade or assigned to the Individual Ready Reserve or
an Individual Mobilization Augmentee position.  Promotion policy also
requires completion of the necessary military education (officer basic
course) and civilian education (baccalaureate degree).

12.  The ROPMA promotion boards for captains were administratively delayed.
 The Presidential approvals of the results of the pertinent promotion
boards were also administratively delayed.  Based on normal processing,
they should have

been convened earlier and approved approximately 75 days after the
respective recess dates.  Based on the normal processing the 1996 RCSB,
which convened on 12 November and recessed 26 November 1996 should have
been approved on 1 February 1997.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
adjustment to his promotion effective date and date of rank for captain to
1 February 1997, the date he would have been promoted had he been timely
considered for promotion prior to his MYIG date.  The applicant was
unjustly and unfairly required to serve beyond the required MYIG.

2.  Although the applicant was selected for promotion to captain the first
time he was considered after the enactment of ROPMA, the untimely promotion
consideration and delay of his promotion created an injustice that should
now be corrected.

3.  The applicant is otherwise qualified for promotion to captain with an
adjusted DOR, as determined by his appropriate commander/manager, and has
met all other prerequisites for promotion on 1 February 1997.

4.  The applicant was prevented from equitable promotion consideration,
unlike others in his grade in earlier and later year groups who were
considered before and after him, and was unjustly considered well after his
eligibility.  He was eligible for promotion consideration prior to his MYIG
date so that, if selected, he may have been promoted on or prior to his
MYIG date.  He was unjustly required to serve in grade beyond the 7 years
required by ROPMA and denied timely consideration.  The further delay for
promotion board proceeding preparation and processing for Presidential
approval compounded the unfair circumstances.  It is concluded therefore,
that had he been timely considered for promotion prior to his MYIG date,
and based on his first-time consideration/selection, a reasonable chance
would have resulted that he would have been selected and respectively
promoted on or before his MYIG date, and entitled to an earlier promotion,
DOR, and pay and allowances.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 August 2001, the date of his
promotion to captain; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 7 August 2004.
The applicant did not file within the 3-year statute of limitations;
however, based on the available evidence, it would be in the interest of
justice to excuse failure to timely file in this case.
BOARD VOTE:

____J___  _WDP___  __RSV__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing he was promoted to captain
with an adjusted promotion effective date and date of rank of 1 February
1997, with entitlement to the pay and allowances in the higher grade on
that date.




                                  ____John T. Meixell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015925                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070117                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.01                                  |
|3.                      |131.05                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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