PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           12 March 2002                   
	DOCKET NUMBER:   AR2002067143

	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	
	Mrs. Victoria A. Donaldson .		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Gail J. Wire		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests correction of his records to show his date of rank (DOR) to lieutenant colonel (LTC) as 1 April 2000.

3.  The applicant states, in effect, that his DOR for major was incorrectly entered as 23 May 1995 in the Standard Installation/Division Personnel System (SIDPERS).  This error resulted in failure of his records to be considered by the Fiscal Year (FY) 1999 Army Promotion List (APL) Lieutenant Colonel Reserve Component Selection Board (RCSB).  He also contends that the Adjutant General of the State of Indiana intended to promote him to the rank of LTC in a unit vacancy position effective 1 April 2000. 

4.  In support of his application, the applicant submitted a 14 October 2001 memorandum from the Commanding General, 38th Infantry Division, Indiana Army National Guard; a 5 October 2000 self-authored statement; a 23 July 2001 memorandum from the Commander of the 38th Division Aviation Brigade; a 6 August 2000 memorandum from the Commander of the 38th Division Aviation Brigade; copies of e-mails and a 27 March 2000 information paper.

5.  The applicant’s military records show that he was a graduate of the U. S. Military Academy at West Point, New York, was commissioned a second lieutenant and was ordered to active duty on 27 May 1981.  He was promoted to first lieutenant on 27 November 1982 and to captain on 1 December 1984.  The applicant transferred to the United States Army Reserve on 15 July 1987 and was promoted to major on 30 August 1993.  He was appointed in the Indiana Army National Guard on 23 May 1995 

6.  The applicant's records show, based on the required 7 years time in grade, his maximum years of service in grade (MYIG) date for promotion to lieutenant colonel was 30 August 2000.  

7.  Department of the Army Memorandum, dated 22 December 1994, SUBJECT: Promotion as a Reserve Commissioned Officer of the Army shows his date of rank to major as 30 August 1993.  

8.  The applicant provided a 14 October 2001 memorandum from the Commanding General, 38th Infantry Division, Indiana Army National Guard, stating that he concurs with applicant's request for adjustment of his date of rank to 1 April 2000.  He stated, "The mistake was due to a processing error and should in no manner be attributed back to the officer."

9.  The applicant also provided a 23 July 2001 memorandum from the Commander of the 38th Division Aviation Brigade that states, "[the applicant's] date of rank for major was incorrectly entered into SIDPERS as 23 May 1995.  The correct date was 30 August 1993.  A Division Career Board recommended [applicant] for promotion to LTC as the Aviation Brigade Executive Officer allegedly prior to his first ROPMA consideration."

10.  Records show that the zone of consideration for the FY99 LTC RCSB was officers with a date of rank to major prior to 1 January 1994.  The RCSB convened on 8 September 1999 and adjourned on 8 October 1999.  The applicant's date of rank of 30 August 1993 was prior to the 1 January 1994 cutoff; therefore he was within the zone of consideration.  Based on the zone of consideration for promotion to LTC, the FY99 LTC RCSB should have considered the applicant's records.

11.  The Department of the Army list of officers eligible to be considered by the FY99 LTC RCSB does not show the applicant's name.

12.  Section 14304 of Title 10 United States Code provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the maximum years of service in grade so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The table in subsection (a) establishes the maximum years of service in grade for a captain to be promoted to major as seven years and for a major to be promoted to lieutenant colonel as seven years.

13.  Section 14301(b) of Title 10 of the United States Code governs requirements for consideration of all officers in and above the zone.  It states whenever a promotion board (other than a vacancy promotion board) is convened under section 14101(a) of this title for consideration of officer in a competitive category who are eligible under this chapter for consideration for promotion to the next higher grade, each officer in the promotion zone, and each officer above the promotion zone, for that grade and competitive category shall be considered for promotion.

14.  National Guard Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions) states in section 8-7c that States will not promote a commissioned officer who is being considered by a Headquarters, Department of the Army Selection Board from the time the board convenes until its recommendations are announced.

15.  Section 14502a (1) of Title 10 of the United States Code states in the case of an officer or former officer who the Secretary of the military department concerned determines was not considered for promotion from in or above the promotion zone by a mandatory promotion board convened under section 14101(a) of this title because of administrative error, the Secretary concerned shall convene a special selection board under this subsection to determine whether such officer or former officer should be recommended for promotion.

16.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other Than General Officers) states in paragraph 3-19a that officers and warrant officers who have either failed selection 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 special selection board as appropriate.  Section 3-19 c states "These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records – (1) Through error, were not submitted to a mandatory promotion selection board for consideration".  Section 3-19 d(1) further states that "Records of officers or former officers will be referred for special selection board action when the Office of Promotions Reserve Components (RC) determines the following: (1) An officer was eligible for promotion consideration; however, the officer's records were, through error, not submitted to a mandatory promotion selection board."

17.  Chapter 1407 of Title 10 of the United States Code governs special selection boards and correction of errors.  Subsection 14502e(2) states that an officer who is promoted to the next higher grade as the result of a special selection board convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which would have considered, or did consider, the officer.

CONCLUSIONS:

1.  Based on a DOR to major of 30 August 1993, the applicant's maximum years of service in grade date for promotion to lieutenant colonel was 30 August 2000.

2.  Based on the applicant's MYIG he was eligible for consideration for promotion to the rank of LTC by the FY99 LTC RCSB.  

3.  Evidence of record shows that, although eligible for consideration for promotion by the FY99 LTC RCSB, the applicant was erroneously not considered due to an administrative error in the SIDPERS database.  Evidence shows this error occurred through no fault of the applicant.

4.  As a result of the applicant's eligibility for promotion to LTC by a RCSB, he was not eligible for promotion under unit vacancy criteria.
5.  The applicant was subsequently considered and selected by the FY 2000 RCSB for promotion to LTC.  He was promoted to LTC in the Indiana Army National Guard with an effective date of 20 April 2001.

6.  The Board noted the chain of command's support of the applicant's request to change his DOR.  However, based on the applicant's eligibility to be considered by the FY99 RCSB, he is not eligible for promotion under unit vacancy criteria.  

7.  Based upon the applicant's failure to be considered by the FY99 RCSB, he is now entitled to consideration by a Special Selection Board (SSB) for promotion to LTC under the FY99 criteria.

8.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That the records of the individual concerned are placed before a Special Selection Board for consideration for promotion to LTC under the FY99 RCSB promotion criteria.

2.  That if selected for promotion by a SSB, then he shall be notified of this selection and promoted to LTC with an appropriated date of rank and paid the difference between major/pay grade 04 and LTC/pay grade 05 from his date of rank through 19 April 2001.

3.  That, if he is not selected for promotion to LTC by the SSB then he shall be so notified.

4.  That so much of the application as is in excess of the foregoing be denied. 

BOARD VOTE:  

___INW__  __RJW__  __GJW__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002067143	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020312	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	 GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	131.0000.0000	
2.		
3.		
4.		
5.		
6.