IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20090005957 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier request for correction of his military records to show his date of rank for captain as either 
7 November 1996 or 1 April 1997 and that his date of rank for major be accordingly changed.

2.  The applicant states, in effect, that he is not asking for any back pay.  He wants his date of rank for captain and major changed so that he will be eligible for promotion consideration to lieutenant colonel by the 2009 promotion board.  The applicant provides two scenarios.  He argues that his date of rank for captain should be changed to 7 November 1996 if his "over-strength" status at the time did not preclude his promotion.  If an "over-strength status" did preclude promotion, then he contends that his date of rank for captain should be changed to 1 April 1997, based on the assumption that the 1996 promotion board should have been approved on 1 February 1997 and allowing 60 days for notification and processing.  A date of rank for captain of 1 April 1997 or earlier would have made him eligible for promotion consideration for major by the 2003 board.  A selection by that major's board would now make him eligible for consideration by this year's lieutenant colonel promotion board.

3.  The applicant provides, in support of his application, copies of his original Army Board for Correction of Military Records (ABCMR) proceedings; appointment orders in the Georgia Army National Guard (GAARNG) as a first lieutenant, effective 10 January 1996; assignment orders as a platoon leader, effective 31 December 1996; and ABCMR proceedings wherein another applicant had requested and received relief in a similar situation.
CONSIDERATION OF EVIDENCE:

1.  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 AR20080006638, on 3 February 2009

2.  The assignment orders and ABCMR case proceedings for another individual with a similar situation were not previously considered by the Board; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  Orders 016-002, State of Georgia, dated 30 January 1996, assigned the applicant for duty as a battalion S-1 (Personnel Officer), effective 10 January 1996.  Battalion S-1 officers are normally captains, pay grade O-3.

4.  Orders 009-013, State of Georgia, dated 17 January 1997, assigned the applicant for duty as a platoon leader, effective 31 December 1996.  Platoon leaders are normally lieutenants, pay grade O-1 or O-2.

5.  On 2 October 1997, the applicant transferred to the Individual Ready Reserve (IRR).

6.  The ABCMR proceedings provided by the applicant show that another applicant had requested and received relief in a similar situation.  Those proceedings state, in pertinent part, that the applicant had been selected for promotion to captain by the 1996 promotion board but that his promotion was unjustly delayed.  It further stated that the individual was otherwise fully qualified and had met all of the other prerequisites for promotion to captain on 1 February 1997.  Accordingly, his date of rank was changed from 8 August 2001 to
1 February 1997.  The date was established based on the individual's 7 years combined years of service as a first and second lieutenant.

6.  The applicant requested in his original application that his date of rank for captain be changed from 10 April 1998 to 2 October 1997 (the date he transferred to the IRR).  In the original consideration of his case, the applicant stated that he was not eligible for promotion to captain on his promotion eligibility date of 8 June 1996 as he was in a first lieutenant position and was not eligible for promotion until he entered the U. S. Army Reserve Control Group (Reinforcement) (i.e., the IRR).  The Board considered his application and recommended approval of his request.   

7.  The 1996 through 2000 Reserve Officer Personnel Management Act (ROPMA) promotion boards for captain were administratively delayed.  The Presidential approvals 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 75 days after the respective recess dates.  Based on the normal processing, the 1996 Reserve Components Selection Board (RCSB), which convened on 12 November and recessed 26 November 1996, should have been approved on 1 February 1997.

8.  Army Regulation 135-155 (Army National Guard and Army Reserve - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Components officers.  This regulation specifies that completion of 7 years maximum years in the lower grade is required before promotion to major and lieutenant colonel.  Officers assigned to a Troop Program Unit must be serving in a position requiring the higher grade or assigned to the IRR.  In addition, IRR officers selected by a mandatory promotion board must have completed the maximum time in grade for promotion to the next higher grade.  The officer's promotion effective date and date of rank will be no earlier than the date the board is approved, or the date the officer meets the maximum time in grade, whichever is later.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his date of rank for captain should be changed to either 7 November 1996 or 1 April 1997; and that his date of rank for major be accordingly changed.

2.  Even though cases with similar sets of circumstances are received by the Board, no two cases are absolutely identical.  Therefore, the Board considers each case based on its own merits and makes its recommendation independent from what any previous Board may have decided in a similar case.   

3.  The applicant's original Board considered the facts and circumstances surrounding his promotion to captain and determined that his date of rank for captain should be changed from 10 April 1998 to 2 October 1997, the date he was transferred to the IRR.  This was recommended and approved for implementation.  

4.  The original Board proceedings also determined that, based on the corrected date of rank for captain of 2 October 1997, the applicant was not eligible for consideration for promotion to major under the 2003 Reserve components Selection Board.
5.  The applicant has not provided sufficiently convincing evidence or argument showing that he was fully qualified for promotion to captain on any date earlier than 2 October 1997, which is the date that he originally requested.    

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20080006638, dated 3 February 2009.



      ___________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090005957



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ABCMR Record of Proceedings (cont)                                         AR20090005957



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