MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           26 June 2003                  
	DOCKET NUMBER:   AR2002081086

	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. Walter T. Morrison 		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Lawrence Foster 		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 first lieutenant to 27 June 2000.

APPLICANT STATES:  He submitted his promotion packet for first lieutenant after having served 2 years as a second lieutenant.  His packet was never forwarded and he was fully qualified for promotion to first lieutenant on 27 June 2000.  In support of his application, he submits copies of his officer basic course completion certificate, his officer evaluation reports for the period ending 30 March 1999, his Oath of Office, his Federal Recognition for initial appointment, and his State appointment orders.

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

He was appointed in the Virginia Army National Guard (ARNG) as a second lieutenant effective 27 June 1998.

Based on the required 2 years time in grade, his maximum time in grade (MTIG) date for promotion to first lieutenant was 26 June 2000.

The Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau (NGB), expressed the opinion that in accordance with Army Regulation 135-155 the applicant was eligible for promotion to first lieutenant on 27 June 2000.  The Reserve Officer Personnel Management Act (ROPMA) provides that second lieutenants not qualified for promotion at 24 months of commissioned service must be retained for 6 months and The Adjutant General of the state concerned may request an additional 12 months extension (total 42 months).  However, this only pertains to second lieutenants who are not qualified for promotion.  It cannot be determined if the applicant was qualified since his packet was not reviewed/approved by the proper authority.  The applicant states on his DD Form 149 (Application for Correction of Military Records) that he submitted a promotion packet but it was not forwarded.  That in itself is not a basis for appeal.  An officer must be recommended, the packet approved up the chain of command with ultimate promotion authority resting with the Chief, NGB.  None of this occurred.  It appears that if the local commander and/or chain of command wanted this to happen it would have been an easy matter to accomplish, yet it did not, for whatever reason.  If his request is approved it would be tantamount to a promotion without regard to proper procedures, while usurping the approval authority throughout the chain of command. In the interest of a just determination, the current local command should be afforded the opportunity to address the situation, explain the circumstances and submit a recommendation.  At that time the case may be reopened.  For this reason, it was recommended that the applicant’s request be denied.

The opinion was forwarded to the applicant for acknowledgement/rebuttal on 2 December 2002.  He did not respond.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve and ARNG officers.  The regulation specifies that for officer in the grade of second lieutenant their records will be screened to determine eligibility for promotion to first lieutenant far enough in advance to permit promotion on the date promotion service is completed.  The time in grade requirements for promotion to first lieutenant is 2 years to 42 months in the lower grade.  The records of ARNG officers will be screened and promotions accomplished by the Chief, NGB.

The ROPMA, a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve component officers.  The law became effective 1 October 1996.  ROPMA provides that Reserve officers in the grade of second lieutenant will be considered for promotion to first lieutenant after serving 2 years time in grade without review by a selection board. 

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.  In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of rank for first lieutenant at this time.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes his contentions that he was eligible for promotion to first lieutenant upon completion of 2 years as a second lieutenant and when he forwarded his promotion packet it was never acted upon.  However, the NGB cannot determine if his promotion packet was reviewed/approved by the proper authority.  Even though the applicant forwarded his promotion packet, it is not a basis for appeal.  The applicant must also be recommended for promotion to first lieutenant and the promotion approved by his local commander.  Without this happening the applicant is not eligible for an automatic promotion to first lieutenant in 2 years.

3.  The Board also notes that the applicant may submit his promotion packet to his local commander for review and a determination concerning an earlier date of rank for first lieutenant.  Should it be determined that he is entitled to an earlier date of rank his case may be reopened.

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

_LF_____  _WTM___  __LE____  DENY APPLICATION

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

INDEX

CASE ID	AR2002081086	
SUFFIX		
RECON		
DATE BOARDED	20030626	
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.