RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 April 2005
      DOCKET NUMBER:  AR20040001888


      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. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |Member               |

      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 requests that his records be corrected to show he was
promoted to lieutenant colonel (LTC) on 1 August 1998 and retired on 11
(sic) May 2004, that he receive back pay and allowances as an active duty
LTC associated with this correction, and that all mention of his non-
selection be removed from his records.

2.  The applicant states, in effect, that he 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 LTC.  Had he
been promoted in a timely manner, he would be serving his country on active
duty as an LTC today.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty) and a U. S. Army Human Resources Command
(USAHRC) letter dated 4 May 2004.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant was commissioned and
entered active duty on 29 September 1981.  He was promoted to Major on 1
November 1993.  He was subsequently considered but not selected for
promotion to LTC.

2.  The applicant was released from active duty on 29 February 2000 in the
rank of Major for the purpose of retirement after completing 21 years, 4
months, and   24 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 the U. S. Total Army Personnel Command
(currently designated 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 LTC with a date of rank and
effective date of 1 August 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 active commissioned service (ACS).

6.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was released from active
duty   on 29 February 2000 in the rank of Major after completing over 21
years of ACS.

2.  The evidence of record shows the applicant was selected for promotion
to LTC by a special selection board subsequent to his retirement.  He was
given a date of rank and effective date of rank of 1 August 1998.  It is
reasonable to presume that the applicant would have stayed on active duty
until he was eligible to retire as an LTC.  He has requested a retirement
date of 11 May 2004.  Individuals are placed on the Retired List effective
the first day of the month.       It would be equitable to show the
applicant would have retired as an LTC on       1 June 2004 with over 3
years time in grade and approximately 25 years of creditable active duty.

BOARD VOTE:

__jev____  __amc___  __mvt___  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for partial 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 LTC effective 1 August 1998;

     b.  voiding his retirement of 1 March 2000 and showing he remained on
active duty until 31 May 2004 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);

     d.  showing he was placed on the Retired List on 1 June 2004 in the
rank of LTC, with all due back retired pay to include any cost of living
adjustments; and

     e.  removing from his records any and all mention of his non-select
recommendations for promotion to LTC.




            ___James E. Vick______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001888                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050414                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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