RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 September 2007
      DOCKET NUMBER:  AR20070010159


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Larry C. Bergquist            |     |Chairperson          |
|     |Ms. Marla J.N.Troup               |     |Member               |
|     |Ms. Ernestine I 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 for
captain from 18 August 1999 to 25 June 1998, based on a change to the Army
Reserve time in grade promotion policy.

2.  The applicant states, in effect, that his date of rank should be
adjusted to a date that reflects a maximum of 7 combined years service as a
first and second lieutenant under the Reserve Officer Personnel Management
Act (ROPMA) Project.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 August 1999, the date of his promotion to captain.  The
application submitted in this case is dated 9 March 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's military records show he was appointed in the United
States Army Reserve (USAR), Army Nurse Corps, as a second lieutenant,
effective 25 August 1991, with prior enlisted service.  He entered active
duty on 3 September 1991 and was promoted to first lieutenant effective
3 September 1993.

4.  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.  Application to the ABCMR did not guarantee the individual
would received an adjusted date of rank, or that if the individual received
an adjusted date of rank, it would be the date they requested.

5.  The 1998 Army Medical Department (AMEDD) Reserve Components Selection
Board (RCSB) convened on 13 January 1998 and recessed on 30 January 1998.
The President approved the board results on 25 June 1998.

6.  The applicant was released from active duty for non-selection of
permanent promotion effective 1 February 1998.  He was transferred to the
USAR Control Group (Reinforcement).

7.  Based on the maximum of 7 combined years of service as a first and
second lieutenant, his maximum time in grade (MTIG) date for promotion to
captain in the USAR was 24 August 1998.

8.  The applicant was considered and selected for promotion to captain by
the 1999 AMEDD RCSB, which convened on 11 January 1999 and recessed on
5 February 1999.  The President approved the board results on 18 August
1999.

9.  The applicant was reassigned to a troop program unit in a captain's
position effective 6 June 1999.  He was issued a promotion memorandum
indicating his promotion to captain effective 18 August 1999.

10.  The 1996 through 2001 promotion boards for captains were
administratively delayed.  Presidential approval 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 100 days after the respective recess dates.  All officers
affected by the transitional years were invited to apply for adjustments to
their date of rank.

11.  The ROPMA prescribed the policies and procedures to consolidate and
modernize the laws governing the management of Reserve component officers.
The law was implemented on 1 October 1996.  ROPMA provides 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
and that an officer selected for the first time for promotion to captain
may be promoted on or before the date that he/she completes the MYIG.
ROPMA further specifies that the officer must be serving in a position
requiring the higher grade or assigned to the Individual Ready Reserve.
Promotion cannot be effective prior to approval of respective boards by the
President.

12.  Army Regulation 135-155, prescribes the policies and procedures for
the promotion of Reserve officers.  This regulation specifies that in order
to be eligible for promotion consideration by a mandatory board, the
officer must be in an active Reserve status for one year prior to the
convening date of the respective board.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to adjustment to his date of rank for captain to 25 June 1998.

2.  The applicant's contentions have been noted; however, the applicant was
properly considered for promotion to captain while on the active duty list.
 He was fairly considered and not selected.  He was released from active
duty for non-selection of permanent promotion effective 1 February 2001,
after the convening date of the 1998 AMEDD RCSB.  Therefore, he was not
eligible for consideration by that board.

3.  The applicant was properly considered by the first board held after his
separation and transfer to the Reserve Active Status List.  The board
results were approved on 18 August 1999 and the applicant was promoted to
captain effective that date.  Therefore, the applicant was promoted to
captain on the earliest date he was eligible and in a timely manner and he
has not shown otherwise.

4.  It is noted that the applicant should not expect his date of rank to be
changed based on the ROPMA Project, since he was on the active duty list
until 1 February 1998 and properly considered and not selected for
promotion to captain by active duty promotion boards.  It is also noted
that the applicant should not expect his date of rank to be changed to the
approval date of the 1998 AMEDD RCSB as he had not been considered and
selected for a Reserve promotion prior to that date.  Application under the
ROPMA Project did not guarantee an adjustment to the officer's date of
rank.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 August 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 17 August 2003.  The applicant did not file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LCB__  _M.J.N.T_  ___EIF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____Larry C. Bergquist_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070010159                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/11                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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