RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 August 2007
      DOCKET NUMBER:  AR20070004215


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Ernestine I. Fields           |     |Member               |
|     |Mr. Randolph J. Fleming           |     |Member               |

      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 reconsideration of his earlier request to adjust
his Major (MAJ) date of rank (DOR) from 3 January 2004 to 27 June 2001.

2.  The applicant states that his Captain (CPT) DOR was incorrectly
determined in 1998 and, as a result, he was not considered for promotion to
MAJ in 2001.  Because he was not selected for promotion to MAJ in 2001, he
was not able to be assigned to an O-4 position within his unit.  His unit
no longer has the manpower documents for 2001, but that does not mean that
he would not have been assigned to an O-4 position had he been considered
for promotion to MAJ at the proper time.

3.  The applicant provides an extract from Army Regulation 135-100 and an
email dated 27 February 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20050009536 on 9 March 2006.

3.  After having had prior service as a commissioned officer in the U. S.
Navy from 11 May 1975 through 1 January 1985, the applicant was appointed a
CPT in the U. S. Army Reserve (USAR) effective 15 October 1998.  He was
given a DOR of 15 October 1998.

4.  The 2001 MAJ Reserve Components Selection Board (RCSB) convened on   6
March 2001.  The President approved the board results on 27 June 2001.  The
applicant was not considered by this board because his CPT DOR had not yet
been adjusted to account for his prior commissioned service.

5.  By email dated 23 November 2003, the applicant was advised that his CPT
DOR had been adjusted to 14 April 1993 and that he would be considered for
promotion to MAJ by a special selection board (SSB) under the 2001
criteria.

6.  The applicant was mobilized and entered active duty on 3 January 2004.

7.  In a 22 June 2004 memorandum, the applicant was advised that he had
been selected for promotion to MAJ under the 2001 criteria.  He was also
advised that the earliest DOR he could have was the presidential approval
date of the 2001 RCSB (i.e., 27 June 2001), if he was in a position and met
qualifications.

8.  A U. S. Army Reserve Command (USARC) Form 56-R (Promotion Qualification
Statement for USAR Mobilized TPU Officers) shows the applicant was assigned
to a MAJ position on 3 July 2004.  He was issued a promotion memorandum,
dated 30 August 2004, which indicated he was promoted to MAJ with a
promotion effective date and a DOR of 3 January 2004 (i.e., his date of
mobilization).

9.  In a memorandum dated 30 March 2005, the Chief, Internal Review and
Management Control Process, Headquarters, 80th Division (Institutional
Training), USARC, advised that the applicant was originally assigned to the
80th Division on 12 April 1999 and was assigned to the Internal Review
Section the entire time.  The applicant was a CPT while assigned to the
Internal Review Section but would have been placed in a MAJ’s position had
he been selected for promotion in 2001.

10.  On 1 October 2005, the applicant was transferred to the Retired
Reserve in the rank of MAJ as a result of being medically disqualified for
retention.

11.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve Component officers.  Paragraph 4-21e(2) of the version
in effect at the time of the applicant’s selection for promotion by the SSB
stated if an officer is selected by an SSB the officer’s DOR and effective
date for pay and allowances would be the same as if the officer had been
recommended for promotion to the grade by the mandatory board that should
have considered, or that did consider, the officer.

12.  Title 10, U. S. Code, section 14502(e) states an officer who is placed
on a promotion list as a result of [a] recommendation for promotion by an
SSB shall, as soon as practicable, be appointed to the next higher grade in
accordance with the law and policies which would have been applicable had
the officer been recommended for promotion by the board which should have
considered or which did consider the officer.  An officer who is promoted
to the next higher grade as the result of the recommendation of an SSB upon
such promotion shall have the same DOR, the same effecting date for the pay
and allowances of that grade, and the same position on the Reserve active-
status list as the officer would have had if the officer had been
recommended for promotion to that grade by the selection board which should
have considered, or which did consider, the officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s CPT DOR was not adjusted to account for his prior
commissioned service when he was appointed in the USAR on 15 October 1998.
Therefore, he was not considered for promotion to MAJ until 2003, when he
was considered by an SSB under the 2001 criteria.

2.  One of the requirements for a unit officer to be eligible for promotion
is to be in the grade to which promoted.  However, it is not feasible for a
unit to tie up a higher-graded position by assigning an officer to the
position who is not yet eligible for promotion.  To do so would prevent the
promotion of an officer who actually has been considered and selected for
promotion to that higher grade.  Therefore, it was not unusual for the
applicant to not have been assigned to a MAJ slot in 2001 as, with a DOR
believed at the time to be October 1998, he would not be eligible for
consideration for promotion to MAJ for several years to come.

3.  Nevertheless, in a memorandum dated 30 March 2005, the Chief, Internal
Review and Management Control Process, Headquarters, 80th Division
(Institutional Training), USARC, advised that the applicant was originally
assigned to the 80th Division on 12 April 1999 and was assigned to the
Internal Review Section the entire time.  The applicant was a CPT while
assigned to the Internal Review Section but would have been placed in a
MAJ’s position had he been selected for promotion in 2001.  There appears
to be no reason to disbelieve the assertion of the Chief, Internal Review
and Management Control Process that the applicant would have been placed in
a MAJ’s position had he been selected for promotion in 2001 but for the
Government’s error of failing to adjust his CPT DOR.

4.  The applicant should not be penalized for the Government’s failure to
properly adjust his CPT DOR.  Therefore, it would be equitable to correct
his records to show he was promoted to MAJ with a date of rank and an
effective date of
27 June 2001.

BOARD VOTE:

__lds___  __eif___  __rjf___  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
amendment of the ABCMR’s decision in Docket Number AR20050009536 dated 9
March 2006.  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 MAJ with a date of rank and an effective date of 27 June 2001
and that he be paid any and all due back pay and allowances as a result of
this correction.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004215                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070807                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |131.04                                  |
|2.                      |131.05                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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