PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 November 02
	DOCKET NUMBER:   AR2002074872

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that all his military records be corrected to reflect that he was promoted to colonel/0-6 with a date of rank of 1 March 2001, and that he be paid back pay for the period of active duty service from 1 March 2001 through 31 January 2002 at the rate of colonel/0-6.

3.  The applicant states that he was selected for promotion by a special selection board, but the U.S. Total Army Personnel Command (PERSCOM) informed him that they could not promulgate the promotion order because he was retired.

4.  In support of his application, he submits a brief in his own behalf; a letter granting reconsideration, dated 9 July 2001; a letter announcing his selection for promotion to colonel/0-6, dated 8 April 2002; and an extract from the Congressional Record confirming his promotion, dated 30 April 2002.

5.  The applicant’s military records show that, in 2001, he was a lieutenant colonel serving in the Judge Advocate General Corps.  On 16 April 2001, having failed selection for promotion to colonel/0-6 on the FY00 Colonel Judge Advocate General Corps Promotion Board, the applicant requested reconsideration.  He based his request for reconsideration on material error in his file that went before the promotion board.  

6.  While his request for promotion reconsideration was ongoing, the applicant voluntarily separated from active duty on 31 January 2002 and was retired as a lieutenant colonel on 1 February 2002.

7.  On 8 April 2002, the applicant was officially notified that he had been selected for promotion to colonel/0-6 with a promotion date of 1 March 2001.  He was also informed that, because he was retired, PERSCOM could not issue the promotion order.  He was referred to this Board.

8.  In the processing of this case, an advisory opinion was obtained from the Promotions Branch, PERSCOM, which states that the applicant was considered and selected by a special selection board under the criteria and instructions established for the regularly-constituted FY00 Colonel, Judge Advocate General Corps that recessed in August 2000.  The applicant was given a sequence number 1.5 resulting in a colonel date of rank and effective date of 1 March 2001. PERSCOM recommended that the applicant be promoted to colonel/0-6 with a date of rank and effective date of 1 March 2001, with all back pay and allowances.  However, PERSCOM could not issue a promotion order since the applicant was separated from active duty.

9.  On 9 September 2002, the applicant concurred with the advisory opinion.

10.  Army Regulation (AR) 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It is linked to AR 600–8 and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  It states, in pertinent part, that officers accepting a promotion to the grade of colonel/O-6 do not incur a service obligation; however, to retire in the next higher grade, the officer must serve satisfactorily in the new grade for a period of 3 years.

11.  Army Regulation 635-5, Separation Documents, prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army and establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty).  It states, in pertinent part, that Block 4 (GRADE, RATE or RANK) will reflect the active duty grade or rank and pay grade at the time of separation.

CONCLUSIONS:

1.  The applicant is entitled to be promoted to colonel/0-6 with a date of rank and effective date of 1 March 2001.

2.  The applicant is entitled to back pay and allowances in the grade of 
colonel/0-6 from 1 March 2001 to 31 January 2002.  

3.  The applicant is entitled to have his DD Form 214 corrected to reflect his rank as colonel/O-6 at the time of his separation.  However, he is not entitled to be retired in the rank of colonel/O-6 because of the provisions of AR 600-8-29.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to colonel/0-6 with a date of rank and an effective date of 1 March 2001; that he be paid back pay and allowances at the colonel/0-6 rate from 1 March 2001 through 31 January 2002; and that his DD Form 214 be corrected to show in Block 4 that he separated as a "colonel/O-6."

BOARD VOTE:  

__fne___  __le____  __tl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002074872	
SUFFIX		
RECON		
DATE BOARDED	20021121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.0000	
2.		
3.		
4.		
5.		
6.