RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2007
      DOCKET NUMBER:  AR20070007159


      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:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 that his Major (MAJ) date of rank (DOR) be
adjusted to 4 March 2003.

2.  The applicant states his DOR should be the date the promotion board
recessed.  He was involuntarily activated.  While on active duty, the Army
Medical Department (AMEDD) MAJ promotion board results were certified.  His
DOR was delayed because he was not in a valid slot (due to his being on
active duty).  Had he not been mobilized, he would have been in a valid
slot.  When he was released from active duty he did return to an MAJ slot.


3.  The applicant provides his promotion memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 September 2003, the date he was promoted to MAJ.  The
application submitted in this case is dated 17 May 2007.

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 was commissioned as a Captain (CPT) in the U. S. Army
Reserve (USAR), Medical Corps, on 30 July 1996.  Effective 15 January 2002,
he was assigned to the 3274th U. S. Army Hospital, Fort Bragg, NC in a CPT
position.

4.  On 12 September 2002, a suspension of favorable personnel actions
(flag) on the applicant was removed as the case had been closed favorably.
The flag was apparently for a failed Army Physical Fitness Test (APFT) and
failure to meet the body fat percentage requirement.

5.  Effective 23 March 2003, the applicant was ordered to active duty as a
member of his USAR unit in support of Operation Noble Eagle.

6.  On 12 June 2003, the applicant passed the APFT and weighed in within
the Army’s body fat percentage standards.

7.  By memorandum dated 24 June 2003, the Office of Promotions, Reserve
Components, U. S. Total Army Personnel Command, informed the applicant
he had been selected for promotion to MAJ by the 2003 Reserve Components
Selection Board (RCSB) with a promotion eligibility date of 30 June (sic)
2003.

8.  By memorandum dated 9 July 2003, the U. S. Army Reserve Personnel
Command (AR-PERSCOM) informed the applicant that promotion action could not
be completed due to his not being assigned to a valid position; nonreceipt
of U. S. Army Reserve Command Form 56-R (apparently a form from his unit
verifying he met the eligibility criteria for promotion) and mobilization
orders (if he was currently mobilized); his not possessing a current date
for the maximum allowable weight requirement for height and weight
standards; his not possessing a current APFT; and his being flagged.

9.  Effective on or about 2 July 2003, the applicant was released from
active duty.

10.  The applicant’s Personnel Qualification Record, dated 19 September
2003, indicated he was assigned to a lieutenant colonel position effective
9 September 2003.

11.  By memorandum, dated 4 December 2003, the U. S. Army Human Resources
Command – St. Louis (USAHRC – STL) informed the applicant he was promoted
to MAJ with a DOR and effective date of 9 September 2003.

12.  In the processing of this case, an advisory opinion was obtained from
the Office of Promotions, Reserve Components, USAHRC – STL.  The advisory
opinion noted that, with a CPT DOR of 30 July 1996, the applicant’s MAJ
promotion eligibility date was 29 July 2003.  He was recommended for
promotion to MAJ by the 2003 RCSB, which was approved by the President on
20 May 2003.  The advisory opinion noted that, when the technician with the
81st Regional Reserve Command started processing the applicant for
promotion, there were numerous problems that had to be resolved before he
could be promoted.

13.  The advisory opinion noted that an officer cannot have a DOR earlier
than the date the President approved the board; therefore, the earliest DOR
he could have would be 20 May 2003.  However, the applicant was not fully
qualified for
promotion on that date.  He met all requirements for promotion, and he was
promoted, effective 9 September 2003.

14.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He stated he talked with the point of contact on the
advisory opinion, who stated there were multiple problems that delayed his
promotion.  Those included a flag for a failed APFT, body fat percentage,
and not being in a valid slot.  He stated the point of contact admitted
that she had documentation of the flag being lifted after an APFT in 2002.
She also acknowledged that his body fat percentage did fall within the
acceptable range.

15.  The applicant stated he was in a MAJ position prior to his being
activated, and he should have been promoted because he was activated at the
time and because there were no other problems.  He stated he had multiple
problems  with paperwork and the maintenance of his records while assigned
to the 81st Regional Reserve Command.  That includes the fact that they
contacted his unit to advise them that he was being activated when he was
already activated.

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers), paragraph 4-9a of the
version in effect at the time, stated, in part, that a USAR Troop Program
Unit (TPU) officer who was considered and selected by a mandatory promotion
board would be promoted and transferred from the unit to the Individual
Ready Reserve (IRR).  Transfer to the IRR would not occur when the officer
was in an authorized position and was an AMEDD officer of either the
Medical Corps or Dental Corps assigned to a position up to two grades below
the grade to which promoted.

17.  Army Regulation 135-155, paragraph 4-21 of the version in effect at
the time, stated that in no case would the DOR or effective date of
promotion be earlier than the date the board was approved or, if required,
the date of Senate confirmation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was selected for promotion to MAJ by the 2003 RCSB that
was approved by the President on 20 May 2003.

2   By memorandum dated 9 July 2003, AR-PERSCOM informed the applicant that
promotion action could not be completed due to his not being assigned to a
valid position; nonreceipt of U. S. Army Reserve Command Form 56-R and
mobilization orders; his not possessing a current date for the maximum
allowable weight requirement for height and weight standards; his not
possessing a current APFT; and his being flagged.
3.  The applicant had been assigned to a CPT position in January 2002; he
met the maximum allowable weight requirement on 12 June 2003; he passed the
APFT on 12 June 2003; and, while he had been flagged at one time, the flag
had been lifted on 12 September 2002.

4.  There is no evidence of record to show the applicant was assigned to at
least a MAJ position until 9 September 2003.  However, the evidence of
record shows he was assigned to a CPT position in January 2002, and Army
Regulation      135-155 allows a Medical Corps TPU officer to be promoted
as long as he or she is assigned to a position up to two grades below the
grade to which promoted.  It would be equitable to presume that he was
returned to that valid CPT position after he was deactivated.  Thus, he did
not have to be assigned to a MAJ position before he could be promoted.

5.  However, the earliest DOR to MAJ the applicant could have would be 20
May 2003, the date the President approved the results of the promotion
board.  There is no evidence of record to show he met the eligibility
requirements as of 20 May 2003.

6.  There were some indications in the applicant’s rebuttal to the advisory
opinion that he had been flagged, in 2002, for a failed APFT and body fat
percentage, and a flag had been lifted in September 2002.  However, there
is no evidence of record and he provided none to show he met the APFT and
body fat percentage requirements for promotion earlier than 12 June 2003.
Therefore, it would be equitable to show the applicant was promoted to MAJ
with a DOR and effective date of 12 June 2003.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 September 2003; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     8 September 2006.  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:

________  ________  ________  GRANT FULL RELIEF

__tap___  __ena___  __pms___  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 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 Major with a date of rank and effective date of 12 June 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
showing he was promoted to Major with a date of rank or effective date of 3
March 2003.




                            __Thomas A. Pagan_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007159                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070913                                |
|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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