RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 September 2005
      DOCKET NUMBER:  AR20040009513


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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’s requests, in effect, that his record be corrected to
show he was promoted to colonel (COL) on 2 October 2001, the date of his
accession into the United States Army, and that he be awarded all back pay
and allowances due as a result.

2.  The applicant’s argument and supporting documentation is provided by
counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s record be corrected
to show he was promoted to colonel (COL) on 2 October 2001, the date of his
accession into the United States Army, and that he be provided all back pay
and allowances due as a result.

2.  Counsel states, in effect, the Army went to great lengths to
accommodate the applicant’s desire to continue his service in the Army as a
vitreoretinal surgeon based on the Army’s need for this specialty.  He
claims Army officials were keenly aware of the need for this medical
specialty given 16 percent of hospitalized combat casualties involved a
foreign body in the eyeball, and the applicant was one of only two such
surgeons on active duty in the Army as of
26 November 2002.  The Army vigorously recruited the applicant and worked
diligently to bring him on active duty as a COL.  The applicant agreed to
serve in the Army based on the promise of appointment in the grade of COL.
Further, there were no reasons why the White House or Senate would have
denied the applicant’s appointment in the rank of COL.  He claims the
applicant had complete confidence in the ability of Army recruiting
officials to determine whether he lawfully could be appointed in the grade
of COL.  These Army officials determined they had the authority to make the
appointment and then offered the applicant this opportunity.  During the
Army’s recruiting process the applicant received a lucrative offer to serve
with a private medical practice.  Had he accepted that offer, his annual
earning would have greatly exceeded the pay offered by the Army.  However,
the applicant strongly desired to continue his military service through to
retirement.

3.  Counsel claims it would be grossly unfair to penalize the applicant for
the Army’s miscalculation.  The Army’s promise to appoint the applicant in
the grade of COL was the decisive factor in his decision to accept the
appointment.  The applicant detrimentally relied on the Army’s promise of
appointment in the grade of COL.  He materially changed his economic and
legal positions in direct reliance of the Army’s promise.
4.  Counsel claims that because the applicant comes to the Board with clean
hands, in no manner having contributed to the errors or injustices that
have so prejudiced him and his family, fairness and equity require the
Board grant the requested relief.

5.  Counsel provides the 25 exhibits identified in the memorandum submitted
in support of the application.

CONSIDERATION OF EVIDENCE:

1.  On 18 April 2001, the United States Army Recruiting Command (USAREC)
Chief, Health Services, a COL, informed the applicant that based on his
professional qualifications, he had been recommended for Reserve forces
duty in the Army Medical Corps (MC) in the grade of COL.

2.  During his appointment processing, USAREC officials further advised the
applicant that his appointment in the grade of COL required Senate
confirmation, for which his name would be submitted, and that the process
took from six to twelve months.  The applicant was further informed he
could elect to enter the United States Army Reserve (USAR) as an interim
lieutenant colonel (LTC) and if he elected this option, he would be
promoted to COL subsequent to Senate confirmation.

3.  On 2 October 2001, the applicant was appointed a LTC in the USAR MC.
United States Total Army Personnel Command (PERSCOM) Orders Number
A-10-004153 ordered the applicant to active duty at Madigan Army Medical
Center (AMC), Fort Lewis, Washington with a reporting date of 2 October
2001.  The additional instructions of the orders specified the applicant
was pending Senate confirmation at the rank of COL.

4.  On 29 January 2003, a brigadier general (BG) from the Office of The
Judge Advocate General (OTJAG) informed the applicant’s commander at Walter
Reed Army Medical Center (WRAMC), also a BG, that the OTJAG administrative
law division had completed a review of the applicant’s case.  This OTJAG
official confirmed the applicant was promised appointment in the rank of
COL, and that he could be granted an individual exception to the promotion
phase point to allow his appointment as a COL.

5.  The Assistant Secretary of the Army (Manpower and Reserve Affairs)
waived, contingent on Presidential and Senate approval, the regulatory and
policy requirements applicable to the applicant’s appointment grade, and
approved his original appointment in the rank of COL.

6.  On 30 May 2003, The Acting Secretary of the Army submitted a memorandum
to the Deputy Secretary of Defense recommending approval of the applicant’s
appointment in the Army in the grade of colonel.

7.  On 23 April 2004, subsequent to White House approval and Senate
confirmation, AHRC Orders Number 126-001 announced the applicant’s
promotion to COL, effective and with a date of rank of 29 April 2004.

8.  Army Regulation 135-101 prescribes policy, procedures, and eligibility
criteria for appointment in the Reserve Components (RC) of the Army, in the
six branches of the Army Medical Department (AMEDD).

9.  Paragraph 3-3 of the AMEDD appointment regulation provides guidance on
determination of entry grade for officers ordered to active duty in an
AMEDD.  It states that the criteria for determining the grade of RC
officers ordered to active duty in an AMEDD corps will be updated at least
annually and published in the DA Circular 601 series for the appropriate
corps.  Authorized credit in excess of the minimum required for appointment
to the appropriate grade in that circular will be used to adjust the date
of rank within that grade.  The policy in effect at the time of the
applicant’s appointment required 22 (+/- 1 Year) years of entry grade
credit for appointment in the grade of COL.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was promised appointment
in the grade of COL during his appointment processing.  It further shows
that he accepted an interim appointment in the grade of LTC with the
understanding his appointment to COL would take place subsequent to the
Senate confirmation process, which would take from six to twelve months.

2.  The record further shows that subsequent to his acceptance of his
interim appointment as a LTC, the applicant’s COL appointment packet was
lost and it was determined he did not have sufficient entry grade credit to
be appointed a COL.  The Assistant Secretary of the Army (Manpower and
Reserve Affairs) waived the appointment requirements in the applicant’s
case and approved his appointment in the grade of COL.  Subsequent to the
Senate confirmation process, the applicant was ultimately promoted to COL
on 29 April 2004.

3.  In view of the facts of this case, it would be appropriate to correct
the applicant’s record to show he was promoted to COL, effective and with a
date of rank of 31 March 2002, under the terms and conditions promised at
the time of his acceptance of his interim appointment on 1 October 2001,
which stipulated the Senate confirmation process would take a minimum of
six months.  Further, it would be appropriate and serve the interest of
justice to provide him all back pay and allowances due as a result of this
correction.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___SLP__  __RLD__  __JRM__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing he was promoted to colonel, effective and
with a date of rank of
31 March 2002, under the terms of his interim appointment; and by providing
him all back pay and allowances due as a result of this correction.

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
establishing his promotion effective date and date of rank to colonel as
the date of his appointment,
1 October 2001.




            ___Shirley L. Powell_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040009513                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/13                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |102.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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