RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR20040004983


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 he be restored to active duty in the rank
of Lieutenant Colonel (LTC), O-5.

2.  The applicant states that he was forced to retire in April 2002 because
he was a two-time non-select for promotion to LTC.  He had begun legal
action in June 2000 to correct his promotion status because certain
instructions to the 1997 board were unconstitutional and prejudicial.  Once
his record was reviewed by a promotion board without the instructions in
question, he was selected for promotion.

3.  The applicant provides a letter from the U. S. Army Human Resources
Command (USAHRC) to his attorney dated 12 July 2004, his promotion orders,
and his request for mandatory retirement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional request or statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a commissioned officer in the U. S. Army
Reserve, Chaplain Corps in October 1979 and was ordered to active duty on
   3 May 1982.  He was promoted to Major, O-4 on 1 November 1990.

2.  The applicant was twice non-selected for promotion to LTC and was
selectively continued on active duty.

3.  In 1999, the applicant applied to the Board for expungement of an
Officer Evaluation Report from his records and promotion reconsideration.
On               1 September 1999, the Board panel recommended that the
contested OER be expunged from his records and that his records be made
available to the next scheduled special selection board (SSB) for promotion
consideration.  The recommendation was approved and his records were
reviewed by the next available SSB under the promotion criteria for fiscal
year 1999; however, he was not recommended for promotion.

4.  On 1 April 2002, the applicant retired in the rank of LTC after
completing         20 years and 9 days of creditable active service.

5.  In 2004, apparently as a result of a court order, the applicant was
again considered for promotion to LTC by an SSB, acting under Title 10, U.
S. Code, section 628, under the promotion criteria for fiscal year 1997.
He was selected for promotion and given an LTC date of rank and effective
date of rank of            1 November 1997.  The promotion orders give the
authority for promotion as Title 10, U. S. Code, section 628 as directed by
the Secretary concerned under the provisions of Title 10, U. S. Code,
section 1558.  Apparently, the court order did not discuss restoration on
active duty.

6.  In the processing of this case, an advisory opinion was obtained from
the Office of the Chief of Chaplains.  That office recommended approval of
the applicant's request for reinstatement on active duty.

7.  A copy of the advisory opinion was provided to the applicant for
comment.  He concurred with the advisory opinion.

8.  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 to
enable 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.

9.  Title 10, U. S. Code, section 1558(a) states that the Secretary of a
military department may correct a person's military records in accordance
with a recommendation by a special board.  Section 1558(b)(1)(C) states
that such term ("special board") does not include a promotion SSB convened
under section 628 or 14502 of this title.

10.  Title 10, U. S. Code, section 1558(c)(2)(A) states that a person who
has been involuntarily board-separated shall, with that person's consent,
be restored to the same status, rights, and entitlements (less appropriate
offsets against back pay and allowances) in that person's armed force as
the person would have had if the person had not been selected to be
involuntarily board-separated as a result of an action the record of which
is corrected under subsection (a).

DISCUSSION AND CONCLUSIONS:

1.  Although the court order is not available, it appears the applicant's
records were ordered to be reconsidered for promotion to LTC under
circumstances similar to that in Christian v. United States.  As a result,
he was recommended for promotion by an SSB acting under Title 10, U. S.
Code, section 628 and given a date of rank and effective date of rank of 1
November 1997.

2.  Title 10, U. S. Code, section 1558(c)(2)(A) states that a person who
has been involuntarily board-separated shall, with that person's consent,
be restored to the same status, rights, and entitlements (less appropriate
offsets against back pay and allowances) in that person's armed force had
the person had not been selected to be involuntarily board-separated.
However, Title 10, U. S. Code, section 1558(b)(1)(C) specifically states
that the term "special board" does not include a promotion SSB convened
under section 628 or 14502 of this title.

3.  Nevertheless, the applicant's circumstances appear to be similar to
those individuals involuntarily board-separated due to a special early
retirement board or a reduction-in-force board.  He was selected for
promotion by an SSB.  Had he been selected for promotion in 1997, he would
not have been retired in April 2002 by reason of being twice non-selected
for promotion.  He requests restoration to active duty and the Office of
the Chief of Chaplains recommends approval of his request.  It would be
equitable to grant the applicant the relief requested.

BOARD VOTE:

__mdm___  __jed___  __jbg___  GRANT FULL 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 relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  voiding his retirement of 1 April 2002; and

     b.  reinstating him on active duty effective 1 April 2002, in the rank
of LTC with a date of rank and effective date of rank of 1 November 1997,
provided he otherwise meets the retention physical fitness standards.




            __Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004983                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |110.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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