RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            18 December 2003
	DOCKET NUMBER:   AR2003089551

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Yolanda Maldonado		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his date of rank to captain be backdated to         28 May 1996.

2.  The applicant states that he was selected for promotion to captain in May of 1996.  He was unable to be promoted to captain until May 1998 because no vacant captain positions existed in his battalion.  However, there was a first lieutenant in a captain position who was unpromotable because he lacked a college degree.  He was told by the full-time Active Guard/Reserve (AGR) officer that all moves were on hold because of activities in Bosnia.  He waited 2 years to get promoted based upon this excuse.  He had no adverse actions pending then or ever.  Upon promotion to captain in May 1998 he was immediately placed in a battery commander's position.

3.  The applicant states that this was not a concern until recently.  His recent concern is that if he were promoted to captain back in 1996 he would be eligible for mandatory promotion to major in May 2003.  He states that an officer personnel manager stated that his case was an administrative error made by his battalion.  He feels this circumstance is an injustice denying him pay and promotion in a timely manner.  

4.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on or about 28 May 1996.  The application submitted in this case is dated 2 April 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was appointed a second lieutenant in the Army National Guard (ARNG) on 27 May 1989.  He was promoted to first lieutenant on 23 May 1992.

4.  By memorandum dated 1 March 1996 from the U. S. Total Army Personnel Command – St. Louis, MO, the applicant was notified that he had been selected for promotion to captain with a promotion eligibility date of 22 May 1996.  He was also notified that his effective date of promotion would be the later of 22 May 1996 or the date Federal recognition in the higher grade was granted.
5.  On 5 May 1998, the applicant was promoted to captain by the Texas ARNG and Federal recognition was granted on 22 May 1998.  National Guard Bureau memorandum dated 23 May 1998 indicated the applicant was promoted to captain as a Reserve commissioned officer effective 22 May 1998.

6.  By orders dated 28 September 1998, the applicant was relieved from assignment as a fire direction officer and assigned to duties as a battery commander.  

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (and U. S. Army Reserve commissioned and warrant officers).  At the time, Table 2-1 stated that a first lieutenant was eligible for promotion to captain by a mandatory selection board with 4 years served in the lower grade.  For unit officers, the effective date of promotion would be the latest date (a) that mandatory service requirements (in Table 2-1) and promotion eligibility requirements (be in an active status and meet educational requirements) were completed; (b) date assigned to a position vacancy in the higher grade; or (c) date of assignment to a nonunit status.

8.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), in pertinent part, states that, except as provided in chapter 8, promotion will be accomplished only when an appropriate modified table of equipment (MTOE) or table of distribution and allowances (TDA) position vacancy in the grade exists in the unit.  Wearing of insignia of the higher grade is not authorized until Federal recognition has been extended by the Chief, National Guard Bureau.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that one of the delays in promoting him to captain was that an unpromotable first lieutenant was in a captain position is noted.  However, the applicant provides no evidence to show this was the case.  In addition, he provides no evidence to show that he would have been qualified to fill that particular captain position.

2.  The applicant's contention that he never had any adverse actions pending against him is noted; however, the quality of his service was not an issue in the delay of his promotion.  As he was a unit officer, a vacancy in the higher grade was required before he could be promoted to captain.

3.  There is no evidence and the applicant provides none to show that his promotion to captain was held up because "all moves were on hold because of activities in Bosnia."  In any case, if true and no captain moved out of a position to create a vacancy, he could not have been promoted.

4.  The applicant provides no evidence to support his contention an officer personnel manager stated his case was an administrative error made by his battalion nor evidence to indicate what the error was.  

5.  Records show the applicant should have discovered the injustice now under consideration on or about 28 May 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 May 1999.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __jea___  __ym____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Raymond V. O'Connor
		        CHAIRPERSON

INDEX

CASE ID	AR2003089551	
SUFFIX		
RECON		
DATE BOARDED	20031218	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.