MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 May 2003       
	DOCKET NUMBER:   AR2002081334

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Frank C. Jones		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:  That his date of rank to first lieutenant be adjusted from 29 September 2001 to 31 March 2001.

APPLICANT STATES:  That Title 10, U. S. Code, section 14303(a)(1) stipulates that a second lieutenant may be promoted to first lieutenant upon completing 18 months time in grade.  Supporting evidence is as listed on the DD Form 149.

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

That, after having had prior enlisted service, he was commissioned a second lieutenant in the U. S. Army Reserve on 30 September 1999.  On 3 February 2001, his commander recommended him for promotion to first lieutenant.  The DA Form 78-R (Recommendation for Promotion to 1LT/CW2) indicated his promotion eligibility date was 31 March 2001.  The recommendation was approved on 7 February 2001.

By memorandum dated 19 July 2001, the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command, informed the applicant that he had been promoted as a Reserve Commissioned Officer of the Army in Active Guard/Reserve Status under the provisions of Title 10, U. S. Code, chapter 1405 (Promotions).  He was informed his effective date of promotion was 29 September 2001.

In the processing of this case, an advisory opinion was obtained from the Special Actions Branch, Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office recommended the applicant's request be denied.  That office noted that Army Regulation 135-155, Table 2-1 (Time in Grade Requirements, Commissioned Officers, other than Commissioned Warrant Officers) states that a minimum of 2 years in the lower grade is required for promotion to first lieutenant.  That office acknowledged that Title 10, U. S. Code, chapter 1405 states that a second lieutenant may be promoted to first lieutenant upon completing         18 months time in grade.  However, that office noted that the same title and chapter authorizes the Secretary concerned to lengthen the minimum period in grade for promotion and that the Secretary did that by stating in Army Regulation 135-155 that the time in grade for promotion to first lieutenant is 2 years in the lower grade.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He did not respond within the given time frame.

Title 10, U. S. Code, chapter 1405, section 14303(a)(1) states that a second lieutenant on the reserve active-status list may be promoted to first lieutenant 
upon completing 18 months time in grade.  Section 14303(c) states that the Secretary concerned may prescribe a period of service in grade for eligibility for promotion, in the case of officers to whom subsection (a) applies, that is longer than the applicable period specified in that subsection.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), Table 2-1, states that a minimum of 2 years in the lower grade is required for promotion to first lieutenant.

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 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.

2.  The Board is cognizant that Title 10, U. S. Code, section 14303(a)(1) states that a second lieutenant on the reserve active-status list may be promoted to first lieutenant upon completing 18 months time in grade.  However, that same section authorizes the Secretary of the Army to prescribe a longer period of service in grade for eligibility for promotion of those same officers.  The Board concludes that the Secretary has elected to exercise that authority by specifying in Army Regulation 135-155 that 2 years in the lower grade are required for promotion to first lieutenant. 

3.  The applicant's commander erred when he indicated on the DA Form 78-R that the applicant's promotion eligibility date to first lieutenant was 31 March 2001, after having served only 18 months in the lower grade.  The 19 July 2001 memorandum correctly reflects his effective date of promotion as 29 September 2001, after having served 2 years in the lower grade.

4.  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

__lls___  __le____  _fcj      ____  DENY APPLICATION

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

INDEX

CASE ID	AR2002081334	
SUFFIX		
RECON		
DATE BOARDED	20030529	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	131.04	
2.		
3.		
4.		
5.		
6.