MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 February 2002                  
	DOCKET NUMBER:   AR2001057103

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Lester Echols		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: Correction to his date of rank for captain.

APPLICANT STATES: In effect, that he has been promotable since 12 July 1998. According to regulations, since he was selected on 12 July 1998, once he is in a position with a promotion packet turned in, then he should be promoted.  He further states that he was not given orders for his current position until May 2000 and officer evaluation problems delayed his promotion further.  Since he was promotable on 12 July 1998 and was in a captain position as of 10 September 1999 with a promotion packet, he feels his DOR should be backdated.  He submits copies of his promotion selection letter dated 30 July 1998, transfer order dated 9 December 1999, State promotion order dated 8 December 2000, Federal Recognition Order dated 24 January 2001 and a National Guard Bureau Promotion Memorandum dated 24 January 2001 in support of his request.

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

He was appointed in the Texas Army National Guard (TX ARNG) as a second lieutenant effective 14 July 1990.  He remained in the TX ARNG as an M-Day (Mobilization) soldier.  He was promoted to first lieutenant effective 13 July 1993. His maximum time in grade date for promotion to captain was 12 July 1997.

He was considered and selected for promotion to captain by the 1997 Reserve Components Selection Board.

An Army Personnel Command promotion memorandum dated 30 July 1998 was issued to him indicating his promotion effective date and date of rank for captain as 12 July 1998.  It also specified that the effective date will be the latter of the following dates: a. 12 July 1998, b. Date Federal Recognition is extended in the higher grade, or c. Date following the date Federal Recognition is terminated in current Reserve Grade.

On 30 July 1998, the applicant elected a voluntary delay of his promotion to captain until 12 July 2001.  He did not explain the reason for his request.  The third year of his request was approved with an expiration date of 12 July 2001.

On 9 December 1999, a transfer order was issued showing his assignment to a captain position within the TX ARNG with an effective date of 11 September 1999.

On 8 December 2000, the promotion delay was terminated and the TX ARNG promoted him to captain effective 8 December 2000.  The memorandum advised him that he would not be paid as a captain until extension of Federal Recognition.

On 24 January 2001, Federal Recognition was extended to the applicant by the National Guard Bureau for promotion to captain effective 24 January 2001.
Current promotion policy pertinent to this case specifies that a voluntary promotion delay may be granted for up to 3 years.  It also specifies that if an officer accepts a promotion prior to the expiration of a voluntary delay of promotion, the effective date will be the date of acceptance and extension of Federal Recognition.  It is further specified that if an officer has a maximum time in grade date prior to his acceptance date during a delay, he is not entitled to his original maximum time in grade date.

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

1.  In view of the circumstances in this case, the applicant is not entitled to correction to his date of rank for captain.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board has noted his contention that his date of rank should be corrected since he was promotable on 12 July 1998, his maximum time in grade date. However, the applicant voluntarily executed a delay of promotion with an expiration date of 12 July 2001.  Prior to the expiration date and after his maximum time in grade date he was transferred to a captain’s position and at the time did not request withdrawal of his delay request.  His delay of promotion was not terminated until 8 December 2000, upon his promotion and acceptance of promotion to captain and extension of Federal Recognition. Federal Recognition was extended effective 24 January 2001. 

3.  The applicant’s promotion to captain effective 24 January 2001 was proper. He has not shown otherwise.

4.  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.

5.  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

_FNE____  _MKP___  _LE____   DENY APPLICATION

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

INDEX

CASE ID	AR2001057103	
SUFFIX		
RECON		
DATE BOARDED	20020207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.10	
3.		
4.		
5.		
6.