MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            25 April 2002                  
	DOCKET NUMBER:   AR2001064403

	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:

	Ms. Joann H. Langston 		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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:  That his date of rank should be adjusted from 31 October 1998 to the date he was recommended for promotion and his time in grade adjusted.  He also states that his promotion was approved in 1996, by a board convened in 1995, for promotion to captain.  The promotion was not granted until 1998, even though, as a company commander, he was eligible for promotion.

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

He was appointed in the Reserve, Armor Branch, as a second lieutenant effective 7 January 1990.

He was appointed in the Ohio Army National Guard (OH ARNG) effective 17 November 1990.

He was separated effective 16 June 1992 from the OH ARNG for failure to obtain a unit of assignment and he was transferred to the USAR Control Group (Reinforcement).

He was promoted to first lieutenant effective 6 January 1993.

He was reappointed in the OH ARNG effective 7 April 1995.

Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to captain was 5 January 1997.

He was considered and not selected for promotion to captain by the 1996F1 Reserve Components Selection Board (RCSB), which convened from 14 November to 15 December 1995.

He was considered and selected for promotion to captain by the 1996F2 (RCSB), which convened from 12 November to 26 November 1996.  The President approved the board results on 12 June 1998.

An Army Personnel Command promotion memorandum dated 7 May 1998 was issued to him indicating his date of rank for captain as 5 January 1998.  It also specified that the effective date will be the latter of the following dates: a. 5 January 1998 (promotion eligibility date), b. 27 November 1996 (date of the adjourning board), or c. date following the date Federal Recognition is terminated in current Reserve Grade.

A promotion memorandum dated 7 May 1998 was issued to the applicant indicating 5 January 1998 as his MTIG date and date of rank.  The memorandum also advised him that the effective date of promotion would be the date Federal recognition is extended.

On 3 October 1998, he requested a delay of promotion to captain for a period of 1 year, effective 5 January 1998 through 5 January 1999.  His request for delay was approved for 27 October 1998 through 5 January 1999.

State promotion orders dated 21 October 1998 issued to the applicant indicate a promotion effective date of 19 October 1998.  Additional instructions listed on the orders advised that the effective date of promotion to the grade of captain in the ARNG will be the date Federal Recognition orders are published.

Federal recognition orders were published 3 November 1998 showing his promotion effective date as the same date.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that if an officer voluntarily delays promotion and is later assigned to a higher graded position during the period of delay and after their MTIG date, the date of rank and effective date become the date of assignment to the higher graded position.

The regulation also specifies that the promotion of an officer selected after having been failed of selection on a first mandatory consideration cannot be earlier than the approval date of the second mandatory board by which the officer is considered.

The regulation also states that an officer who selects a delay of promotion and who is not promoted on or before the end of their maximum authorized voluntary delay period, will either be promoted, or decline promotion and be considered to have failed of selection for promotion.

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 adjustment of his date of rank for captain.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes his contention that his promotion was approved in 1996 by a board that convened in 1995; however, he was not selected for promotion to captain by the board that convened in 1995.  The board that convened in 1996 and selected him was approved by the President effective 12 June 1998.
3.  It is also noted that the applicant voluntarily executed a delay of promotion with an expiration date of 5 January 1999.  It appears that prior to his expiration date he was promoted to captain with a date of rank of 5 January 1998, which has been established as his MTIG date.  He has not shown that his date of rank is in error or that he was not properly considered for promotion to captain.

4.  The applicant’s records show he was extended Federal Recognition effective 3 November 1998, which is his promotion effective date for captain.  It is noted that 3 November 1998 is his promotion effective date and not his date of rank for captain.

5.  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.

6.  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

_gdp___  _cg_____  _jhl____       DENY APPLICATION

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

INDEX

CASE ID	AR2001064403	
SUFFIX		
RECON		
DATE BOARDED	20020425	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.