RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            30 March 2006
      DOCKET NUMBER:   AR20050007716


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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, reconsideration for promotion to
major/0-4 (MAJ/0-4) by a Special Selection Board (SSB).

2.  The applicant states, in effect, he should have been considered for
promotion to MAJ/0-4 based on the governing regulation and on Assistant
Secretary of the Army (ASA), Manpower and Reserve Affairs (M&RA) policy as
outlined in a memorandum, dated 14 January 2005.  He claims that an error
on the part of Human Resources Command (HRC)-St. Louis resulted in not
notifying him of the steps he needed to take to be placed before a
mandatory MAJ/0-4 Reserve Component Selection Board (RCSB) for three years,
which has impacted his ability to be promoted with his peers.

3.  The applicant claims he was selected for promotion, pending completion
of his security clearance, by a vacancy board in 2002.  He was subsequently
assigned to the Individual Ready Reserve (IRR) due to a change in his
civilian employment area.  He claims that he was informed by his losing
organization that he could not be promoted due to his transfer out of the
position upon which his vacancy promotion selection was based.  However,
the losing organization failed to inform him that he had to request that
his name be removed from the 2002 vacancy promotion board.  In 2005, he was
mobilized and first heard of this requirement during HRC briefings
conducted at Fort Jackson, South Carolina.

4.  The applicant states that he contacted promotion officials at HRC-St.
Louis regarding consideration by a SSB as he was directed to while
undergoing the briefings at Fort Jackson, where the HRC representative told
him he should be considered for promotion by an SSB as a result of the
administrative errors committed.  He was further advised that in order to
be considered by the SSB, he would have to request his name be removed from
the vacancy promotion list; however, once he complied with that directive,
he was told that HRC would not consider placing his record before a SSB,
which he claims is in contravention with the governing regulations, and the
ASA M&RA’s policy memorandum of
14 January 2005.

5.  The applicant also claims that he has met all the requirements for
promotion to MAJ/0-4, and that HRC’s refusal to allow him to be considered
for promotion by a SSB has placed him at a great disadvantage with his peer
group.  He claims it also has impacted his level of income during his
deployment, and he should not have to wait until March 2006 to be
considered for promotion.  He finally requests that he be considered for
promotion by a SSB and that if promoted, he be provided all positive
benefits that would result from his selection in October 2002.
6.  The applicant provides the 11 documents identified in his List of
Evidence attachment to his application in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on 28 July 1988, he was commissioned
a second lieutenant in the United States Army Reserve (USAR).  He was
promoted to first lieutenant (1LT) on 24 May 1991 and to captain (CPT) on
23 May 1995.

2.  In January 2002, while serving in a Troop Program Unit (TPU), the
applicant was selected for promotion to MAJ by a position vacancy selection
board and was placed on the position vacancy promotion list.

3.  On 15 October 2002, the applicant was transferred from his TPU to the
IRR, based on his having moved beyond a reasonable commuting distance from
the unit.

4.  HRC-St. Louis Orders Number M-02-500588, dated 8 February 2005,
pursuant to Presidential Executive Order of 14 June 2001, ordered the
applicant to active duty for a period not to exceed 545 days, in support of
Operation Iraqi Freedom.  The applicant was directed to report to Fort
Jackson, South Carolina not later than 27 March 2005.

5.  On 31 March 2005, after reporting to Fort Jackson, the applicant
contacted an HRC-St. Louis promotion representative requesting that he be
considered for promotion by a SSB because he had been omitted from
consideration by the mandatory RCSB and because he had been selected for
promotion to MAJ/0-4 by a position vacancy board.

6.  On 6 April 2005, the Chief, Office of Promotions, Reserve Components
(RC), HRC-St. Louis responded to the applicant’s request and informed him
that because his name has remained on the position vacancy promotion list
through
5 April 2005, he was not eligible for consideration for promotion by a
RCSB.  He was further advised that the earliest eligible selection board
would be in 2006, which was scheduled to convene in March 2006.

7.  In connection with the processing of this application, an advisory
opinion was obtained from the Chief, Office of Promotions, RC, HRC-St.
Louis.  The promotion official that provided the advisory opinion indicated
that the applicant failed to notify that office of his transfer to the IRR
in October 2002 and he remained on the position vacancy promotion list
until his name was removed from that list on 5 April 2005.
8.  The HRC-St. Louis promotion official further indicated that in
accordance with the governing law and regulation, a Department of the Army
(DA) RCSB may not consider an officer for promotion to the next higher
grade while his name is on a promotion list resulting from a prior
mandatory or position vacancy board.  He further indicated that 14 January
2005 ASA M&RA policy memorandum did not apply to RC officers selected for
promotion by position vacancy boards.  He further indicated that because
the applicant’s name was on a promotion list until 5 April 2005, he is not
eligible for promotion consideration by a DA SSB under the 2003 through
2005 criteria.  He further indicates that the applicant’s name had been
identified to the 2006 DA RCSB, which was the earliest eligible board.  He
concludes by stating that it should be noted the applicant failed to
inquire about his promotion status until 31 March 2005, and in view of the
fact, it was recommended the applicant’s request be disapproved.  This same
promotion official clarified for the staff of the Board that the applicant
had been identified by the 2002 RCSB that convened in March 2002, but since
he had been selected by the January 2002 position vacancy board his name
was deleted from the consideration list.

9.  On 18 November 2005, the applicant was provided a copy of the HRC-St.
Louis advisory opinion in order to have the opportunity to reply.  To date,
he has failed to respond.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers Other Than General Officers) prescribes policy and
procedures used for selecting and promoting commissioned officers (other
than commissioned warrant officers) of the Army National Guard of the
United States (ARNGUS) and of commissioned and warrant officers (WO) of the
USAR.  Paragraph 2-5 outlines eligibility criteria.  It states, in
pertinent part, that while on a promotion list resulting from a prior
mandatory or position vacancy promotion board or approved for Federal
recognition in the higher grade and nominated for Reserve promotion on that
basis, an officer may not be considered for promotion by a subsequent
mandatory or position vacancy promotion board.

11.  Section III of the RC promotions regulation contains guidance on
promotion reconsideration boards.  It provides that officers and warrant
officers who have either failed to be selected for promotion, or who were
erroneously not considered for promotion through administrative error may
be reconsidered for promotion by either a promotion advisory board or a
SSB.  These boards are convened to correct/prevent an injustice to an
officer or former officer who was eligible for promotion but whose records
through error, were not submitted to a mandatory promotion selection board
for consideration.

12.  On 14 January 2005, the ASA M&RA published a policy memorandum that
provided an exception to regulatory requirement that an officer selected
for promotion by a mandatory promotion board be assigned or attached to a
permanent RC position requiring the higher grade.  However, the memorandum
stipulated that the policy did not apply to RC officers selected for
promotion by a position vacancy board.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was not considered for
promotion during the period 2003 through 2005, while he was assigned to the
IRR, because his name remained on the position vacancy promotion list.  As
confirmed by the HRC-St. Louis advisory opinion, the applicant was not
eligible for promotion consideration during this period because of his
position vacancy promotion list status.  However, there are equity
considerations that should be addressed in this case.

2.  The applicant indicates that he was unaware that he remained on the
position vacancy promotion list after his transfer from his TPU to the IRR,
and that no one in his old unit, or at HRC St. Louis ever informed him of
this fact.  Further, he indicates that he first became aware of this when
he was briefed by an
HRC-St. Louis representative at Fort Jackson, when he reported for
mobilization in support of Operation Iraqi Freedom, who informed him he
could be considered for promotion by a SSB.

3.  There is no question that the letter of the law and regulation
prohibited the applicant’s consideration for promotion while he remained on
the position vacancy promotion list; however, in the interest of justice
and equity, and in order to allow the applicant to stay competitive with
his peers, it is concluded it would be appropriate to correct the
applicant’s record to show he was removed from the position vacancy
promotion list upon his transfer to the IRR on 15 October 2002.

4.  It would also be appropriate to place the applicant’s records before a
SSB for promotion consideration under the criteria used by the 2003, 2004
and 2005 MAJ DA RCSBs.  Further, if he is selected for promotion by the
SSB, his MAJ promotion effective date and date of rank should be
established as if he had been originally selected, and he should be
provided all back pay and allowances due as a result.  If not selected, he
should be so notified.


BOARD VOTE:

___JTM _  __CAK __  __RCH _  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
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  showing his request to be removed from the position vacancy
promotion list was approved and he was removed from that list on 15 October
2002 in conjunction with his transfer to the Individual Ready Reserve;

      b.  submitting his record to a Special Selection Board for promotion
consideration to major under the criteria followed by the 2003, 2004 and
2005  Department of the Army, Major, Reserve Components Selection Boards;

      c.  if selected for promotion to major by the Special Selection Board,
by establishing his major promotion effective date and date of rank as if
he had been originally selected, and by providing any back pay and
allowances due as a result; and


      d.  if not selected for promotion he should be so notified.





            ____John T. Meixell _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007716                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/30                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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