RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 July 2007
      DOCKET NUMBER:  AR20070004568


      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             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. James R. Hastie               |     |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 date of rank to major be
changed from 19 July 2000 to 28 February 2000.  He also requests that his
record be submitted to a Special Selection Board (SSB) for promotion
consideration to lieutenant colonel (LTC).

2.  The applicant states, in effect, that his date of rank for promotion to
major should be adjusted to his promotion eligibility date (PED) which is
28 February 2000.  His current date of rank for major is not in compliance
with Title 10, United States Code (USC), section 14304(a).  The 2000 major
promotion list, released on 19 July 2000, gave him a date of rank of 19
July 2000, which was incorrect.  His date of rank for captain was 28
February 1993 and according to Title 10, USC, section 14304(a), his date of
rank to major should be 7 years later.

3.  The applicant provides copies of his promotion orders for captain and
major in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed to the
United States Army Reserve (USAR), as a second lieutenant, effective 15 May
1988.

2.  Orders Numbers 217-26, U.S. Total Army Personnel Command, Alexandria,
Virginia, dated 30 August 1990, shows the applicant was promoted to first
lieutenant in USAR, effective 4 September 1990.

3.  Orders Numbers 17-046, U.S. Total Army Personnel Command, Alexandria,
Virginia dated 3 February 1993, shows the applicant was promoted to captain
with a date of rank and effective date of rank of 28 February 1993.

4.  He was considered and selected for promotion to major by the 2000
Reserve Components Selection Board (RCSB) that convened on 7 March 2000 and
recessed on 6 April 2000.  The President approved the board results on 19
July 2000.

5.  Based on the required 7 years time in grade, his PED for promotion to
major was 28 February 2000.



6.  The applicant was issued a Promotion Memorandum, dated 10 August 2000,
indicating he was promoted to major with a promotion date and effective
date of rank of 19 July 2000.

7.  In an advisory opinion, dated 30 April 2007, the Chief, Promotions
Branch, Office of Promotions, Reserve Components, Human Resources Command –
St. Louis, Missouri, opined that the applicant was considered and selected
for promotion to major by the 2000 RCSB with a promotion eligibility date
of
28 February 2000.  The applicant was promoted with a date of rank and
effective date of 19 July 2000.  The opinion states that the date is in
accordance with paragraph 4-21e (2) of Army Regulation 135-155.  The
regulation states that if an officer has an maximum time in grade (TIG)
date that is before the approval date of the board that selected him for
promotion, the officer’s promotion date and effective date will be no
earlier than the approval date of the board.  The opinion continues that
the applicant’s TIG date of 28 February 2000, was prior to 19 July 2000;
therefore, 19 July 2000, is his correct date of rank and effective date of
promotion.  The opinion concluded that based on the applicant’s date of
rank he is not eligible for promotion consideration to LTC by a DA
Selection Board under the 2005 criteria and recommends that the applicant’s
request be disapproved.

8.  In an undated memorandum the applicant responded to the Human Resources
Command recommendation by stating that it is quite a contradiction between
the guidance provided in Army Regulation 135-155 paragraph 4-21e (2) that
was used by the Human Resources Command to recommend disapproval of his
request and the guidance provided by Title 10 USC, section 14304 (a) which
he believes substantiates his request.  He further states that his initial
request was solely connected to Title 10 USC, section 14304 (a), which
provides that an officer must be promoted on or before his maximum time in
grade.  He asks that the Board find validity in the U.S. Code, favorably
grant his request to change his date of rank to major and submit his
records to be reviewed in accordance with the “2005 LTC APL Board
criteria.”  Finally, he requests that if the Board finds in his favor, that
he be awarded all lost major’s pay from 29 February 2000 through 19 July
2000 as well as pay from the effective date of promotion to LTC.

9.  Title 10, USC, section 14304(a) specifies that officers shall be placed
in the promotion zone and shall be considered for promotion to the next
higher grade by a promotion board convened under section 14101(a) of this
title, far enough in advance of completing the maximum years in grade
(MYIG) so that, if the officer is recommended for promotion, the promotion
may be effective on or before the date on which the officer will complete
those years of service.  The established MYIG for promotion from captain to
major is 7 years.  Paragraph (b) states, in effect, that a Reserve
Components 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 specified in this law.

10.  Title 10, USC, section 14308(c)(2) states that, “Except as
specifically authorized by law, a Reserve officer is not entitled to
additional pay or allowances if the effective date of the officer’s
promotion or date or rank are adjusted to reflect a date earlier than the
actual date of the officer’s promotion.”

11.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that an officer
is promoted after selection, if all qualifications are met.  An officer
selected by a mandatory promotion board that has a PED before the approval
date of the board, will have a promotion effective date and date of rank no
earlier than the date of a the mandatory promotion board.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
an adjustment to his date of rank for major to 28 February 2000, the date
he completed the 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 PED, based on MYIG provisions of the law, in order to allow him to
remain competitive with his peers.  The approval date for that board was 19
July 2000.  The applicant's date of rank for captain was 28 February 1993.
With 7 years time in grade, his PED would have been 28 February 2000.  A
promotion memorandum was issued, dated 10 August 2000, with a date of rank
of 19 July 2000 (approval date of the board).  However, because his
mandatory time in grade was prior to that date, it is recommended his date
of rank for major be adjusted to 28 February 2000, with an effective date
of 19 July 2000.

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.  However, this change does
not authorize a change to his promotion effective date or entitle him to
additional pay and allowances for the date of rank adjustment.
4.  In view of the foregoing, notwithstanding the advisory opinion, the
applicant’s records should be corrected by showing that he was promoted to
major with a date of rank of 28 February 2000 with no change to his
promotion effective date.

5.  Based on the above correction to the applicant's date of rank, he was
in the zone of consideration under the 2005 Department of the Army Reserve
Component Selection Board for promotion to the grade of lieutenant colonel.
 Therefore, it would now be appropriate to submit his records for
appropriate SSB consideration for this purpose.

BOARD VOTE:

__JI___  ___RML __  ___JRH__  GRANT FULL RELIEF

________  ________  ________  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 relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing the individual concerned was promoted to major with a
date of rank of 28 February 2000 and promotion effective date of 19 July
2000.


2.  The Commander, USA HRC, will review the individual’s records to
determine if there were any promotion/selection boards he would have been
eligible for based on this correction; provide official notification to the
individual of the results of that review; and, if applicable, refer his
records to the appropriate promotion/ selection board(s) or an appropriate
standby promotion/selection board.




                                  _____ _John Infante_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/07/24                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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