RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          5 October 2004
      DOCKET NUMBER:  AR2004100643


      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. Robert J. McGowan             |     |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 his retirement rank be corrected to Colonel
(COL/O-6).

2.  The applicant states, in effect, that:

      a.  He was a US Army Reserve (USAR) officer serving as a Lieutenant
Colonel (LTC/O-5).

      b.  He was not selected for promotion to COL and was transferred to
the Retired Reserve on his mandatory retirement date (MRD) of 1 December
2000 after 28 years of USAR service.

      c.  He was subsequently selected for promotion to COL by a special
selection board on 18 August 2003 and given a date of rank of 30 May 2000.

3.  The applicant provides:

      a.  A copy of Orders C-04-011373, US Army Reserve Personnel Command,
dated 25 April 2000, assigning him to the Retired Reserve as of 1 December
2000.

      b.  A copy of a letter from the US Total Army Personnel Command,
dated 18 August 2003, advising him of his promotion to COL with an
effective date of 30 March 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a LTC serving in an active status in the USAR.
During the period from 3 September 1999 through 2 September 2000, he served
366 days on active duty (AD).  During the period 3 September 2000 through 1
December 2000, he served an additional 28 days of AD.

2.  The applicant reached his MRD as a LTC and was removed from active
status in the USAR and placed in the Retired Reserve effective 1 December
2000.

3.  On 18 August 2003, a special selection board selected the applicant for
promotion to COL with a date of rank of 30 March 2000.

4.  In the processing of this case, an advisory opinion was obtained from
the US Army Human Resources Command – St. Louis which recommends that the
applicant be granted relief by reinstating him to active status in the
USAR, or giving him credit through 1 December 2002 – the anniversary of his
30th year of service and his MRD as a COL – and placing him in the Retired
Reserve as a COL.  The applicant was provided an opportunity to respond to
the advisory opinion and he concurred.

5.  Title 10, United States Code, Section 14507, governs removal from the
USAR active-status list for years of service.  Section 14507b states in
pertinent part that each USAR officer who holds the reserve grade of COL,
and who is not on the list of officers recommended for promotion to the
next higher grade shall, if not earlier removed from the USAR active status
list, be removed from that list under section 14514 of this title on the
first day of the month after the month in which the officer completes 30
years of commissioned service.

6.  Section 14514 of Title 10 governs discharge or retirement for years of
service. This section states, in pertinent part, that each USAR officer who
is an active status and who is required to be removed from an active status
or from a reserve active-status list, as the case may be, under Section
14507,14508, 14704, of 14705 of this title (unless the officer is sooner
separated or the officer’s separation is deferred or the officer is
continued in an active status under another provision of law), in
accordance with those sections shall:  (1) be transferred to the Retired
Reserve, if the officer is qualified and applies for such transfer; or (2)
if the officer is not qualified or does not apply for such transfer, be
discharged from the officer’s appointment.

7.  Section 14502 of Title 10 governs special selection boards and
correction of errors.  Subsection 14502e(2) states that an officer who is
promoted to the next higher grade as the result of a special selection
board convened under this section shall, upon such promotion, have the same
date of rank, the same effective date for the pay and allowances of that
grade, and the same position on the reserve active-status list as the
officer would have had if the officer had been recommended for promotion to
that grade by the selection board which would have considered, or did
consider, the officer.

8.  Subsection 14502e(2) states that if the report of a special selection
board convened under this section, as approved by the President, recommends
for promotion to the next higher grade an officer not currently eligible
for promotion or a former officer whose name was referred to it for
consideration, the Secretary
concerned may act under section 1552 of this title to correct an error or
remove an injustice resulting from not being selected for promotion by the
board which should have considered, or which did consider, the officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, as a LTC with 28 years of commissioned service, was
properly transferred to the Retired Reserve effective 1 December 2000 by
law.

2.  Following promotion consideration by a DA Special Selection Board, the
applicant, on 18 August 2003, was recommended for promotion to COL with a
date of rank and effective date for pay and allowances of 30 March 2000.

3.  Because he was already beyond his MRD as a COL [1 December 2002], the
US Army Human Resources Command – St. Louis could not revoke his retirement
order and return him to USAR active status.

4.  Based on his selection to colonel, the applicant was entitled under law
to serve in an active status, including service in a TPU position, until
the completion of 30 years of commissioned service.

5.  Evidence of record shows that the applicant would have completed 30
years of commissioned service effective 1 December 2002.  Therefore, under
Section 14507b of Title 10, the applicant would have been transferred to
the Retired Reserve on that date.

6.  In order to correct the injustice created by the applicant’s erroneous
non-selection to COL and subsequent selection by a DA Special Selection
Board, the Board finds that the applicant should receive Reserve pay and
allowances in the grade of COL/O-6 for the period 30 March 2000 (his
promotion effective date to COL) through 1 December 2000 (the date he was
originally transferred to the Retired Reserve in the grade of LTC).

7.  In order to correct the injustice created by the applicant’s erroneous
non-selection to colonel, the Board further finds that the applicant should
receive constructive service credit in the grade of COL/ O-6 for the
purposes of retirement points and Reserve pay and allowances for the period
2 December 2000 through 1 December 2002 (the date he completed 30 years of
commissioned service [his MRD as a COL] and should have been removed from
the active-status list by law).

8.  In order to correct the injustice created by the applicant’s erroneous
non-selection to colonel, the Board further finds that the applicant should
receive constructive service credit for 48 drill periods (Inactive Duty
Training (IADT)), 15 days of Annual Training (AT) and 15 membership points
for the retirement year ending 2 December 2001 and that his Chronological
Statement of Retirement Points should be corrected accordingly.

9.  In order to correct the injustice created by the applicant’s erroneous
non-selection to colonel, the Board further finds that the applicant should
receive constructive service credit for 48 drill periods (Inactive Duty
Training (IADT)), 15 days of Annual Training (AT) and 15 membership points
for the retirement year ending 2 December 2002 and that his Chronological
Statement of Retirement Points should be corrected accordingly.

10.  Based on the foregoing, the applicant’s pay account should be audited
to determine the difference in active duty and drill pay and allowances
between LTC/ O-5 and COL/O-6 to which he is entitled for the period 30
March 2000 through 1 December 2002 and that he be paid the difference in
pay and allowances to which he is entitled, if any.

11.  In view of the foregoing findings and conclusions, it would be
appropriate to correct the applicant’s records as recommended below.

BOARD VOTE:

__kan___  __jtm___  __lcb___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be
corrected:

      a.  by showing that the individual concerned served in an active
status in the USAR in the grade of COL/O-6 during the period 30 March 2000
through 1 December 2000;

      b.  showing the individual concerned served in an active status in
the USAR in the grade of COL/O-6 during the period 2 December 2000 through
1 December 2001;

      c.  showing the individual concerned served in an active status in
the USAR in the grade of COL/O-6 during the period 2 December 2001 through
1 December 2002;

      d.  by crediting him with 78 retirement points [48 points for IADT,
15 points for AT and 15 points for membership] and a qualifying year for
retirement purposes for the period 2 December 2000 through 1 December 2001;
and

      e.  by crediting him with 78 retirement points [48 points for IADT,
15 points for AT and 15 points for membership] and a qualifying year for
retirement purposes for the period for the period 2 December 2001 through
1 December 2002.

2.  That, upon completion of the correction specified in paragraph 1a
above, the Defense Finance and Accounting Service audit the Reserve pay
account of the individual concerned to determine the difference in pay and
allowances between LTC/O-5 and COL/O-6 to which he is entitled for the
period 30 March 2000 through 1 December 2000 and pay him the monies to
which he is entitled, if any.

3.  That, upon completion of the corrections in paragraph 1b through e
above, the Defense Finance and Accounting Service determine the Reserve pay
and allowances to which the individual concerned is entitled in the grade
of colonel/pay grade O-6 for the period 2 December 2000 through 1 December
2002 and pay him all Reserve pay and allowances due to him, if any.



                 Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100643                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041005                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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