MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 June 2003                  
	DOCKET NUMBER:   AR2002081818

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Eloise C. Prendergast		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 lieutenant colonel to 30 April 2002.

APPLICANT STATES:  That the Unit Vacancy promotion board’s effective date was 30 April 2002.  His unit was partially mobilized, but not the lieutenant colonel billet he was in.  Due to administrative error his position was listed as being mobilized and was not corrected until 11 July 2002, which is his lieutenant colonel date of rank.  In support of his application he submits copies of his promotion orders for lieutenant colonel, his unit mobilization orders, and his officer evaluation report (OER) for the period ending 15 December 2001.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board, information herein was obtained from documentation submitted by the applicant that shows:

He was serving as a member of the Reserve and was promoted to major with a date of rank of 27 August 1997.

He was considered and selected for promotion to lieutenant colonel by the 2002 Reserve Position Vacancy Board (PVB).  The President approved the board results on 11 April 2002.

Documentation submitted by the applicant shows that his unit was mobilized effective 10 November 2001 for a period not to exceed 365 days.

On his OER for the period ending 15 December 2001, the applicant’s Principal Duty Title is shown as Commander.

The Officer Personnel Management Division, Army Reserve Personnel Command (AR-PERSCOM) verified that he was assigned to a lieutenant colonel position effective 11 July 2002.  He was promoted to lieutenant colonel effective that date with a same date of rank.

The Military Personnel Actions Branch, AR-PERSCOM, expressed the opinion that effective 1 October 1996, the Reserve Officer Personnel Management Act (ROPMA) became effective.  A promotion list does not exist until the board’s recommendations are approved by the President in accordance with Title 10, United States Code (USC), Chapter 1405, section 14308.  Further, the effective date of promotion and date of rank will be the date an officer is assigned to a higher-grade position, providing he/she meets all other qualifications for promotion.  The Act further specifies that the effective date of promotion may not predate the approval, by the President, of the board results.  The applicant was 

selected on the January 2002 PVB with an approval date of 11 April 2002.  It was determined the applicant met all qualifications for the January 2002 PVB on 11 July 2002, when he was assigned to a valid position.

The opinion was forwarded to the applicant for acknowledgement/rebuttal on 19 February 2003.  In his rebuttal, dated 5 March 2003, he states that the circumstances of his situation provide a gray area for the regulation stated in the opinion.  His unit was improperly mobilized and non-mobilized soldiers were transferred to another unit.  This was incorrectly done and it took until 11 July 2002 to rectify the situation and, at this point, he received his promotion order.  He also states that during the period November 2001 until the correction, he continued to serve as a commander and was not relieved of duty.  It is his contention that his date of rank should be 30 April 2002, the approval date of the PVB.

Title 10, USC, section 14308 specifies that a promotion list does not exist until the President approves the board's recommendations.  Further, the effective date of promotion may not predate the President's approval of the board results.

Army Regulation 135-155, prescribed the policies and procedures for promotion of Reserve Component officers.  The regulation specifies that officers in the grade of major may be eligible for promotion consideration to lieutenant colonel by a PVB upon completion of 4 years MTIG and promotion to fill authorized troop program unit position vacancies may be filled through promotion of the best qualified and geographically available officer to the grades of captain through colonel.  All unit officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available to serve in the position for which considered.

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 to his date of rank for lieutenant colonel to 30 April 2002.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board has noted his contentions; however, the applicant’s records show he was assigned to a lieutenant colonel position effective 11 July 2002.  The applicant has not submitted evidence showing the commander position he held for the rating period ending 15 December 2001 was a lieutenant colonel slot.  The Officer Personnel Management Division, after reviewing the Unit Manning Report for his unit, verified that he was assigned to a valid lieutenant colonel position and met all qualifications for the January 2002 PVB effective 11 July 2002.
3.  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.

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

_ELP____  _JPI____  _RVO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002081818	
SUFFIX		
RECON		
DATE BOARDED	20030612	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.05	
3.		
4.		
5.		
6.