RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 July 2007
      DOCKET NUMBER:  AR20070001538


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Ms. Ernestine Fields              |     |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 to his date of rank to
major from 17 July 2003 to 23 December 2002.

2.  The applicant states, in effect, that he exceeded the maximum time in
grade of 7 years for captain by the amount of 7 months.  At the time he was
selected for the Active Guard Reserve (AGR) Program (September 2000), he
had missed the window for the AGR major promotion board and had to wait
another year for consideration.  He was notified in September 2002 and
brought on AGR status on 17 November 2002.  The major's promotion board's
cut-off date for that year was 1 August 1996 and he was promoted to captain
on 1 January 1996.  Under the "fully qualified" or even "best qualified"
AGR promotion system, he believes that he would have been qualified for
promotion to major, as he had met all the necessary educational and
performance requirements for promotion by the 2002 board.  He contends that
in these cases a special board may be held for those within the AGR
promotion window instead of delaying promotion for those who otherwise
would qualify for promotion.

3.  The applicant also states that some of the requirements he completed
were the Officer Advanced Course (OAC), the Combined Arms Service Staff
School (CAS3), numerous good officer evaluation reports (OER) in
challenging leadership positions, as well as a Master's Degree.  These
requirements, in addition to his solid record, should have qualified him
for promotion.  He does not have any negative marks or adverse action in
his records.  This adjustment would put him back on track with his peers
for future promotion board consideration.

4.  The applicant provides copies of his Officer Record Brief; his
promotion orders for captain; his OAC service school academic evaluation
report; his CAS3 completion certificate; and his OERs for the periods
ending 30 March 1999, 1 January 2000, 4 January 2002, and 15 November
2002, and 4 January 2004, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was commissioned in the
Regular Army, as a second lieutenant, effective 21 December 1991, with
prior enlisted service.  He was promoted to first lieutenant effective 21
December 1993 and to captain effective 1 January 1996.
2.  The 2002 Major Reserve Components Selection Board (RCSB) convened
on 4 March and recessed on 3 April 2002.  The board results were approved
on 19 June 2002.  The applicant was not considered for promotion to major
in the United States Army Reserve (USAR) by this board since he was still
on active duty.

3.  The applicant was separated from active duty, as a captain, effective
16 November 2002 and transferred to a Reserve unit.  He was appointed in
the USAR, as a captain, effective 17 November 2002, and entered active duty
in an AGR status effective 26 November 2002.

4.  Based on the completion of the required 7 maximum years in grade (MYIG)
his promotion eligibility date for major was 31 December 2002.

5.  The applicant was considered and selected for promotion to major by the
2003 RCSB that convened on 3 March and recessed on 4 April 2003.  The board
results were approved on 17 July 2003.

6.  The applicant was issued a Promotion Memorandum, dated 2 August 2003,
indicating his promotion to major with a promotion effective date and date
of rank of 17 July 2003.

7.  In an advisory opinion, dated 16 March 2007, the Chief, Special Actions
Branch, Office of Promotions, Reserve Components, Human Resources Command,
St. Louis, Missouri, stated that the applicant was on active duty on
4 March 2002, the convening date of the 2002 RCSB major selection board;
therefore, he was not eligible for consideration by that board.  His first
eligible board was the 2003 board that selected him for promotion.  He was
promoted with a date of rank of 17 July 2003, the approval date of the
board.  Based on attaining the MTIG on 31 December 2002, the applicant is
eligible for that date as his date of rank.  It was recommended the
applicant's date of rank be corrected to 31 December 2002 and his effective
date remains 17 July 2003.

8.  The advisory opinion was forwarded to the applicant for acknowledgement
or rebuttal on 22 May 2007 and he concurred on 15 June 2007.

9.  Army Regulation 135-155, prescribed the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that officers in
the grade of captain may be promoted to major upon completion of 7 years
MYIG, selection by a mandatory Reserve promotion board, and have met all
requirements for
promotion.  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 years of service.  AGR 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.

10.  Army Regulation 135-155, also specifies that an officer will not be
considered for a Reserve promotion unless in an active Reserve status for 1
year no later than the date a respective RCSB convenes to be considered by
that RCSB for a Reserve promotion.  The regulation further specifies that
promotion consideration by a special selection board (SSB) may only be
based on erroneous non-consideration or material error, which existed in
the record at the time of consideration.  There are no provisions for
consideration by a SSB for active duty officers who were on the active duty
list on the convening date of the mandatory Reserve promotion board.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
adjustment to his date of rank for major to 31 December 2002, the date he
completed the 7 years MYIG as a captain.

2.  Army Regulation 135-155 specifies that an officer cannot be promoted to
the next higher grade prior to the approval date of the promotion board;
however, this does not preclude a change to the applicant’s date of rank to
his MYIG, based on MYIG provisions of the law, in order to allow him to
remain competitive with his peers.

3.  Based on these provisions of the law, an 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.  Therefore, this action
is recommended in the interest of equity to allow him to remain competitive
with his peers.  However, this change does not authorize a change to his
promotion effective date of 17 July 2003 or entitle him to additional pay
and allowances for the date of rank adjustment.
4.  Based on the applicant's date of rank for first lieutenant of 16
December 1997, he was not eligible for consideration by the 2000 RCSB and
an adjustment to his date of rank for captain based on a change to the
Reserve of the Army time in service promotion policy.

5.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_SWF___  __EF____  __ena___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that the Department of the Army records of the individual
concerned be corrected by showing the applicant was promoted to major with
a date of rank of 31 December 2002 and promotion effective date of 17 July
2003.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
adjustment to his date of rank for major to 23 December 2002.




                                  ____Eric N. Andersen______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070001538                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070703                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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