MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            1 February 2001                  
	DOCKET NUMBER:    AR2000043214

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his records be corrected to show his date of promotion to captain as 1 August 1993 instead of 30 May 1995.

APPLICANT STATES:  In effect, that his date of promotion should be changed to 1 August 1993.  In support of his application, he submits a letter from the Assistant Adjutant of Headquarters, United States Army Reserve Command, his letter of promotion to captain and his appointment letter as a Reserve commissioned officer.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant completed a Doctorate in Optometry in May 1989.  On 29 November 1989, he applied for an appointment as a Reserve commissioned officer.  He was appointed as a Reserve commissioned officer on 17 October 1990 in the rank of first lieutenant and was credited with 4 years, 2 months and 15 days of creditable service.  The applicant was assigned to the 820th Station Hospital in Puerto Rico.  The applicant is currently assigned to the 7223 U.S. Army Medical Support Unit in the rank of captain.

On 4 March 1993, the applicant was notified that he was eligible for promotion to the next higher rank with a promotion eligibility date of 1 August 1993.  

The applicant was notified on 28 June 1993 that he was selected for promotion to captain under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  
The applicant accepted the promotion to captain on 15 July 1993.

There is no evidence of record which shows the applicant was assigned to a duty position requiring the grade of captain.

The applicant’s records contain Headquarters, U.S. Army Reserve Command Orders Number 95-166-019, dated 30 May 1995, which transferred him to the U.S. Army Control Group and promoted him to captain with an effective date of 30 May 1995.  This order states the reason for reassignment is: “promoted to grade exceeding vacancy”.

In the processing of this case, a staff advisory opinion was obtained from the U. S. Army Reserve Personnel Command.  On 4 October 2000, the applicant was provided 30 days to submit matters in rebuttal to this opinion; however, the applicant did not respond within the time allotted. 

This opinion states that the effective date of an officer’s promotion is governed by Army Regulation 135-155, paragraphs 4-8 and 4-19b(2), which states in part that officers selected by a mandatory board who are not assigned to a higher grade position are transferred to the Individual Ready Reserve (IRR) and are promoted upon transfer.  The opinion also states that the 1993 captain AMEDD Board, which convened on 20 January 1993, recommended the applicant for promotion with a promotion eligibility date of 1 August 1993.  In addition, the opinion states that, at that time, the applicant was not assigned to a higher grade position and was cited for unexcused absences from the scheduled unit training assemblies.  As a result, the applicant was transferred to the IRR and promoted to captain on 30 May 1995.

Army Regulation 135-155 governs promotion of commissioned officers and warrant officers other than general officers.  Chapter 4 governs the processing of selection board recommendations.  Paragraph 4-8 of this regulation requires that an officer who is selected and promoted will be transferred to the Individual Ready Reserve unless he or she is assigned to a vacancy required for the grade to which they are promoted, unless they are authorized retention in the unit in a lower grade or they decline promotion.

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth policy and procedures for assigning, attaching, removing and transferring soldiers of the U.S. Army Reserve (USAR).  Chapter 4 of this regulation addresses transfers to the IRR.  Paragraph 4-5 of this regulation provides for transfer of an individual from a troop program unit (TPU) to the IRR to accept promotion when there is no properly graded position available so that the individual can be promoted to the next grade in that TPU.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant was appointed as a Reserve commissioned officer in the rank of first lieutenant.

2.  The applicant was selected for promotion to the rank of captain.  At that time, he was given a promotion eligibility date of 1 August 1993.  

3.  There is no evidence of record which shows the applicant was ever assigned to a duty position requiring an officer in the grade of captain. 

4.  The applicant was transferred to the IRR and promoted to the rank of captain effective 30 May 1995.

5.  Evidence of record shows the applicant was promoted to captain 30 May 1995 as a result of being transferred to the IRR.  There is no evidence of record which shows he served in a captain’s position prior to 30 May 1995.  Therefore, the applicant’s records are correct as currently constituted and his date of rank to captain will not be changed. 
6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

LLS_____  JEA____  EWL____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000043214	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.0500	
2.		
3.		
4.		
5.		
6.