RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 May 2004
      DOCKET NUMBER:   AR20040000042


      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. Nancy L. Amos                |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant defers to counsel.

2.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty) and a 4 August 2003 letter from the U. S. Total
Army Personnel Command (PERSCOM).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be promoted to colonel (COL) with a
date of rank of 1 September 1998; that his retirement date be changed to 30
April 2002; that he receive constructive credit for active duty service for
an additional  4 years and 3 months; that he received back pay and
allowances as an active duty COL from 1 September 1998 until 3 April 2002,
less offsets; that he receive the difference in retired pay between that of
a lieutenant colonel (LTC) with        22 years service and a COL with 26
years service commencing 1 May 2002 with all future retired pay and cost of
living adjustments calculated on the basis of retirement as a COL with 26
years' active service.

2.  Counsel states, in effect, that the applicant was considered by a
special selection board due to the unconstitutionality of the equal
opportunity language in the instructions to the original promotion board.
The applicant was subsequently, after his retirement, promoted to COL.  Had
he been promoted in a timely manner, he would have stayed on active duty
until he had completed 26 years of active commissioned service (ACS), at
which the last pay raise for pay grade O-6 occurs.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned and entered active duty on 19 April
1976.  He was promoted to lieutenant colonel (LTC) on 1 January 1993.  He
was subsequently considered but not selected for promotion to COL.

2.  The applicant was released from active duty on 31 January 1999 in the
rank of LTC for the purpose of retirement after completing 22 years, 9
months, and   12 days of creditable active service.

3.  On 5 June 2000, the U. S. Court of Federal Claims established, in
Christian v. United States (a case concerning an officer selected by a
Selective Early Retirement Board (SERB) for early retirement), that the
equal opportunity instructions used by the SERB were unconstitutional.  On
8 February 2001, that Court ruled that the results of that board are void.
As a result of this decision, section 503 of the National Defense
Authorization Act for FY 2002 enacted Title 10, U. S. Code, section 1558
and amended Title 10, U. S. Code, section 628 to require that members
challenging unfavorable treatment by a selection board to apply to their
Service Secretary for consideration by a special board or a special
selection board.

4.  The applicant applied to PERSCOM (currently designated the U. S. Army
Human Resources Command (USAHRC)), acting for the Secretary of the Army,
under the provisions of amended Title 10, U. S. Code, section 628.  He was
subsequently selected for promotion to COL and would have been promoted
with a date of rank and effective date of 1 September 1998.

5.  Title 10, U. S. Code, section 633 states that, unless retired earlier,
a Regular Army LTC (not recommended for promotion) will be retired the
first day of the month after the month in which the officer completes 28
years of ACS.

6.  Title 10, U. S. Code, section 634 states that, unless retired earlier,
a Regular Army COL (not recommended for promotion) will be retired the
first day of the month after the month in which the officer completes 30
years of ACS.

7.  Title 10, U. S. Code, section 1370 states that, in order to be eligible
for voluntary retirement in a grade above major, a commissioned officer
must have served on active duty in that grade for not less than 3 years,
except that the Secretary of Defense may authorize the Secretary of a
military department to reduce such period to a period not less than 2 years
in the case of retirements during the period 1 October 1990 through 31
December 2001.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was released from active
duty on 31 January 1999 in the rank of LTC after completing 22 years, 9
months, and   12 days of ACS.  He was selected for promotion to COL by a
special selection board subsequent to his retirement and was given a date
of rank and effective date of rank of 1 September 1998.

2.  The applicant could have retired in the rank of COL after completing 3
years time in grade.  It is reasonable to presume that had he been promoted
to COL in a timely manner he would have stayed on active duty until he had
served 3 years time in grade as a COL.  It is also reasonable to presume
that he would have stayed in until he completed 26 years of ACS and
received the last automatic pay raise authorized O-6s.  He would have
reached that point on 19 April 2002.  Therefore, in accordance with his
request, it would be equitable to show he retired on 1 May 2002 at which
time he would have completed just over 26 years of creditable active
service.

3.  Any back due active duty pay would be offset by any civilian and/or
military retired pay the applicant may have received.

BOARD VOTE:

__fne___  __rd______ __ym____  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  showing he was promoted to COL effective 1 September 1998;

     b.  voiding his retirement of 1 January 1999 and showing he remained
on active duty until 3 April 2002 when he was released from active duty for
the purpose of retirement;

     c.  paying to him all due back active duty pay and allowances as a
result of the above correction with appropriate offsets for any civilian
pay and/or military retired pay he may have received; and

     d.  showing he was placed on the Retired List on 1 May 2002 in the
rank of COL, with all back due retired pay to include any cost of living
adjustments.




            ___Fred N. Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004107129                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040511                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.00                                  |
|2.                      |136.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |