RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           5 October 2004
      DOCKET NUMBER:  AR20040003295


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry C. Bergquist            |     |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 colonel (COL) effective 1 April 2000 and that he be paid
retired pay as a COL with over 22 years of service commencing 1 April 2003.
 He also requests issuance of a new Legion of Merit (retirement award)
certificate, a new Certificate of Retirement, a new Presidential
Certificate of Appreciation for service, a corrected DD Form 214
(Certificate of Release or Discharge from Active Duty); and a corrected
final Officer Evaluation Report (OER).

2.  The applicant states that he was considered and selected for promotion
to COL by a special selection board [due to the unconstitutionality of the
equal opportunity language in the instructions to the original promotion
board].  He was subsequently, after his retirement on 1 October 2000,
promoted to COL.  He states that he does not seek back due active duty pay
as he has been employed by the Federal Government.  He understands that
such a correction may be administratively necessary to award him back pay
with an offset of his other Government pay and he is comfortable with that
result.

3.  The applicant provides a letter, dated 25 May 2004, from the U. S. Army
Human Resources Command (USAHRC).

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant was commissioned and
entered active duty on 26 September 1980.  He was promoted to lieutenant
colonel (LTC) on 1 October 1994.  He was subsequently considered but not
selected for promotion to COL.

2.  The applicant was released from active duty on 30 September 2000 in the
rank of LTC for the purpose of retirement after completing 20 years and 5
days of creditable active service.  His last OER and retirement Legion of
Merit award certificate are not available.

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, around May 2004, selected for promotion to COL, with a date
of rank and effective date of 1 April 2000.

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 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 2000 in the rank of LTC after completing 20 years
and 5 days of creditable active service.  He was selected for promotion to
COL by a special selection board subsequent to his retirement with a date
of rank and effective date of rank of 1 April 2000.

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, as he
requests, he had served 3 years time in grade as a COL.  He would have
reached that point on 31 March 2003, at which time he would have completed
about 22 years,        6 months, and 5 days of creditable active service.

3.  Although the applicant states he does not request correction of his
records to show he served the additional time on active duty, such a
correction is administratively necessary to facilitate the relief he does
request.  In addition, it is the same relief granted to similarly situated
former officers.  Therefore, it would be equitable to show he would have
retired as a COL on 1 April 2003 with approximately 22 years and 6 months
of service.  Payment of back due active duty pay is also administratively
necessary.  Any undue windfall would be recovered by the required offsets.

4.  It would be appropriate to issue to the applicant a corrected DD Form
214, a new Certificate of Retirement, and a new Presidential Certificate of
Appreciation to reflect his corrected rank and retirement date.
5.  It would not be appropriate to issue the applicant a new Legion of
Merit certificate based upon his corrected rank and retirement date.
Although his Legion of Merit certificate is not available, it is presumed
the Legion of Merit was awarded for a specific period of time ending around
September 2000.  At that time, he was in fact an LTC.  Although his date of
rank to COL was retroactive to 1 April 2000, he was not actually promoted
to COL until almost 4 years later.

6.  It would not be appropriate to correct the applicant's final OER.
Although it is not available, it is presumed it was prepared to rate a
specific period of time ending around September 2000.  At that time, he was
in fact an LTC.  He was rated as an LTC and his senior rater rated his
potential compared to other LTCs.

________  ________  ________  GRANT FULL RELIEF

__kan___  __jtm___  __lcb___  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 COL effective 1 April 2000;

     b.  voiding his retirement of 1 October 2000 and showing he remained
on active duty until 31 March 2003 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 April 2003 in the
rank of COL, with all due back retired pay to include any cost of living
adjustments; and

     e.  issuing him a corrected DD Form 214, a new Certificate of
Retirement, and a new Presidential Certificate of Appreciation to reflect
his corrected rank and retirement date.
2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correcting his Legion of Merit (retirement award) certificate and his final
OER.




            ___Kathleen A. Newman_
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003295                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041005                                |
|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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