RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            24 June 2004
      DOCKET NUMBER:   AR20040002832


      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 C. Hise                 |     |Chairperson          |
|     |Mr. Stanley Kelley                |     |Member               |
|     |Mr. Hubert O. Fry                 |     |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 requested, in an initial application that was
administratively closed on 15 July 2003 (Docket Number AR2002081702), that
his records be corrected to show he was promoted to colonel (COL) with a
date of rank of         1 June 1999; that he be granted constructive credit
for additional active duty until the maximum time-in-grade requirements
that could have been waived would have allowed him to retire as a COL, and
that he be retired as a COL and begin receiving the retired pay of a COL.

2.  The applicant stated, in effect, that the equal opportunity language in
the instructions to the original promotion board were unconstitutional.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned and entered active duty on 2 June 1976.
He was promoted to lieutenant colonel (LTC) on 1 May 1994.  He was
subsequently considered but not selected for promotion to COL.

2.  The applicant was released from active duty on 30 September 1999 in the
rank of LTC for the purpose of retirement after completing 27 years and 3
months 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 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 with a date of rank and effective date of 1 June 1999.

5.  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 effective 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 30 September 1999 in the rank of LTC after completing 27 years and
3 months of active service.

2.  The evidence of record shows the applicant was selected for promotion
to COL by a special selection board subsequent to his retirement.  He was
given a date of rank and effective date of rank of 1 June 1999.

3.  The applicant stated that had he been promoted to COL in a timely
manner he would have stayed on active duty until he could have been granted
the maximum authorized waiver of the 3-year time-in-grade requirement.  At
that time, the Secretary of the Army was authorized to grant a 1-year
waiver of the time-in-grade requirement.  Therefore, the applicant would
have been eligible to retire on 31 May 2001.

BOARD VOTE:

__jch___   _sk____   __hof___   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 June 1999;

     b.  voiding his retirement of 1 October 1999 and showing he remained
on active duty until 31 May 2001 when he was released from active duty for
the purpose of retirement after receiving a 1-year waiver of the 3-year
time-in-grade requirement;

     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 June 2001 in the
rank of COL, with all due back retired pay to include any cost of living
adjustments.




            __James C. Hise_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002832                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040624                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |