RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 October 2004
      DOCKET NUMBER:  AR2004100771


      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 E. Anderholm            |     |Chairperson          |
|     |Ms. Deborah S. Jacobs             |     |Member               |
|     |Mr. Ronald J. Weaver              |     |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, in effect, that his records be corrected to
show he was appointed to colonel (COL), O-6 effective with his execution of
his oath of office, reaccession to active duty, and reporting to active
duty.  In addition, he requests retention of all pay received to date.  His
application to this Board is dated            5 January 2004.

2.  The applicant states that he was selected for appointment in the
Medical Corps as a COL.  He executed an oath of office as a lieutenant
colonel (LTC) promotable on 20 December 2002.  He was ordered to active
duty as a COL.  All subsequent orders, documents to include his military
identification card, and records to include his finance records showed his
rank as COL.  All communications he had had with recruiters, personnel
managers, and Medical Command administrators indicated he would serve as a
LTC promotable pending Senate confirmation of his rank of COL.

3.  The applicant further states that up until November 2003, his records
showed his rank to be COL and his active date of rank (ADOR) as 2 June
2003.  They have since been corrected to show his rank to be LTC and his
ADOR as 2 June 2002.

4.  The applicant provides the nine documents listed in the continuation
sheet to his DD Form 149.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior inactive and active service, having been
released from active duty on 1 August 1987 in the rank of major as a
Medical Corps officer.

2.  By letter dated 19 December 2002, the U. S. Army Recruiting Command
informed the applicant that he had been recommended for reserve forces duty
in the Medical Corps in the rank of COL.  He was informed that appointment
as a COL required Senate confirmation.  His name would be submitted for
Senate confirmation, a process which could take approximately six to twelve
months.  He could choose to enter the reserves as a LTC prior to Senate
confirmation or delay his entry until the Senate confirmed him for COL.  If
he decided to enter as an interim LTC, he would be advanced to COL
subsequent to Senate confirmation and acceptance of his appointment.

3.  The applicant decided to enter the reserves as a LTC prior to Senate
confirmation and, on 20 December 2002, he executed an oath of office
accepting appointment as a reserve LTC.
4.  U. S. Total Army Personnel Command, St. Louis Order A-03-390914 dated
13 March 2003 ordered the applicant to active duty as a COL with a
reporting date of 2 July 2003.  The additional instructions on these orders
informed him he was appointed a reserve COL effective the date of entry on
active duty and was placed on the active duty list as a COL.  His date of
rank was adjusted based on constructive credit of 23 years and phase points
of 22 years.  These orders were amended on 22 April 2003 to change his
reporting date to 2 June 2003.

5.  The applicant entered active duty on 2 June 2003 and was paid as a COL.

6.  U. S Army Human Resources Command Order Number 279-001 dated          6
October 2003 announced a determination affecting the promotion status of
the applicant.  The order indicated his grade of rank was COL and his ADOR
was     2 June 2002.

7.  The Senate confirmed the applicant's reserve appointment as a COL on
    29 April 2004.

8.  Army Regulation 600-8-29 (Officer Promotions), paragraph 1-41 states
that a commissioned officer assigned to an Army Medical Department Corps,
upon placement on the active duty list, will have his or her ADOR
determined by backdating from the date of placement on the active duty list
a period equal to the number of days by which the entry grade credit
awarded exceeds the promotion phase point in the competitive category that
established the entry grade.

9.  Army Regulation 600-8-29, paragraph 1-22b states that if an officer's
promotion is declared void and if the authority who revokes the promotion
order determines that the officer had, before the declaration, accepted the
promotion in good faith and worked in the higher grade, then he or she will
be deemed to have served in the higher grade in a de facto status.  This
period of de facto status will be from the date of the erroneous promotion
until the date the officer received notice that it was void.  This will
allow the officer to keep any pay and allowances received at the higher
grade.

10.  Army Regulation 600-8-29 defines "date of rank" as the actual date on
which an officer was appointed in a particular grade, adjusted for service
credit.  It is the date used to determine relative seniority for officers
holding the same grade.  "Promotion phase points" is defined as the timing
of promotions to a grade expressed in terms of the length of time an
officer will have served in the lower grade at the time of promotion to the
higher grade.

11.  Army Regulation 600-8-29 defines "original appointment" as any
appointment in a reserve or regular component of the armed forces that is
neither a promotion nor a demotion.  An officer may receive more than one
"original appointment."

12.  Title 10, U. S. code, section 12203 provides that appointments of
reserve officers in commissioned grades above the grade of lieutenant
colonel shall be made by the President, by and with the advice and consent
of the Senate.

13.  In the processing of this case, an advisory opinion was obtained from
the Office of the Surgeon General (OTSG).  OTSG in turn requested an
advisory opinion from the Office of The Judge Advocate General (OTJAG).
OTSG informed OTJAG that the applicant had been assessed on active duty as
a LTC promotable pending Senate confirmation; however, he entered active
duty on orders that contained a standard name line identifying him as a
COL.  OTSG stated it was plausible that he automatically assumed his Senate
confirmation to COL occurred upon receipt of his active duty orders, that
he acted in good faith, and that he should not suffer the burden of
repayment.  OTSG also stated, however, that since appointment as a COL
requires confirmation of the Senate, and since he was confirmed by the
Senate on 29 April 2004, there was no remedy to change his official date of
rank to COL effective June 2003.

14.  OTJAG provided an informal opinion by concurring with OTSG's opinion
that the applicant's "date of rank" should be 29 April 2004.  On that date,
he should have received a new original appointment as a COL.  His "date of
rank" could not predate his appointment.  OTJAG also noted that the
applicant should not be referred to as a LTC promotable as he never
appeared before a promotion board for promotion to COL.

15.  OTSG then opined to this Board that the applicant should be absolved
of all overpayments from his date of entry on active duty due to no fault
of his own.  However, since his appointment as a COL required Senate
confirmation, OTSG recommended his "advancement" to COL be effective 29
April 2004.

16.  A copy of the advisory opinions were provided to the applicant for
comment or rebuttal.  He responded by stating he had no specific rebuttal
to the advisory opinion; however, he must be clear on his official date of
rank in order to properly execute officer evaluation ratings.

17.  The Reserve Appointments Branch informed the Board analyst on
     13 October 2004 that their system shows the applicant was appointed a
COL effective March 2003.

18.  The applicant's Officer Record Brief dated 13 October 2004 shows his
rank as LTC and his date of rank as 2 June 2002.

19.  Army Regulation 135-100 (Appointment of Commissioned and Warrant
Officers of the Army), paragraph 2-7 states that the execution and return
of the oath of office constitutes acceptance of appointment.  No other
evidence is required.  However, acceptance of an appointment may be
"expressed" as by formal acceptance in writing or "implied" as by entering
on the performance of the duties of the office.

20.  The Department of Defense Financial Management Regulation, volume 7A,
paragraph 010201C1 states that pay and allowances generally accrue from the
date of acceptance of appointment as an officer.  The normal method of
acceptance is taking the oath of office.  Commencement of travel in
compliance with an order is considered acceptance for pay purposes, but
payment will not be made until formal signing of the oath of office.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was informed in December 2002 that he had been
recommended for reserve forces duty in the Medical Corps in the rank of COL
but that appointment as a COL required Senate confirmation.  He was also
informed that the confirmation process could take six to twelve months but
he could enter the reserves as an interim LTC prior to Senate confirmation.
 He would be advanced to COL subsequent to Senate confirmation and
acceptance of his appointment.

2.  On 20 December 2002, the applicant executed an oath of office accepting
appointment as a reserve LTC.  However, when his active duty orders were
published 3 months later, those orders erroneously indicated he would enter
active duty as a COL.  He entered active duty on 2 June 2003 and was
immediately treated as, and paid as, a COL.

3.  The applicant should first understand the distinction between his "date
of rank" and his "effective date of rank" (i.e., his effective date of
appointment).

4.  The applicant's "date of rank" as COL is the actual date on which he
was appointed as a COL, adjusted for service credit.  When he entered
active duty, he was awarded constructive credit as a COL of 23 years and
phase points of  22 years.  (Constructive credit and phase points as a LTC
did not apply as he was appointed as a COL, pending only Senate
confirmation.  He would never
compete for promotion as a LTC.)

5.  An ADOR is determined by backdating from the date of placement on the
active duty list by a period equal to the number of days by which the entry
grade credit awarded exceeds the promotion phase point in the competitive
category that established the entry grade.  That is, since the applicant
was placed on the active duty list on 2 June 2003 and his entry grade
credit exceeded his phase points by 1 year, his ADOR was backdated to 2
June 2002.  Although it appears U. S Army Human Resources Command Order
Number 279-001 dated               6 October 2003 was premature, it
correctly indicated that his ADOR as COL was 2 June 2002.

6.  The applicant's "effective date of rank" (or appointment) on the other
hand, is the actual date on which he was appointed as a COL without regard
to any adjustment for service credit.  He was not appointed to COL the date
he entered active duty.  His active duty orders erroneously listed his rank
as COL.  He was eligible for appointment to COL the date the Senate
confirmed his appointment as a COL, i.e., 29 April 2004.  Even though there
is no evidence to show that he has as yet accepted his appointment as a
reserve commissioned officer as a COL, the preponderance of evidence shows
his acceptance was "implied" as he was performing the duties of that
office.  However, equity considerations call for an adherence to 29 April
2004 as his effective date of rank.

7.  Again, there is no evidence to show that the applicant has yet accepted
his appointment as a reserve commissioned officer as a COL.  Payment as a
COL should not normally be made until formal signing of the oath of office.


8.  It is also noted that the applicant's latest Officer Record Brief still
shows him as a LTC and that records at the Reserve Appointments Branch show
him with the correct rank of COL but with an erroneous effective date of
appointment.

9.  OTSG's opinion that it was plausible the applicant automatically
assumed his Senate confirmation to COL occurred upon receipt of his active
duty orders is a reasonable presumption.  It appears he accepted the
responsibilities and benefits of a COL in good faith.  However, in regards
to his being paid as a COL from his entry on active duty to the date the
Senate confirmed his appointment as a COL, his erroneous "appointment"
should be considered as analogous to an erroneous promotion.

10.  It cannot be determined when the applicant became fully aware that he
was being erroneously treated as and paid as a COL.  He stated that up
until November 2003 his records showed his rank to be COL and they had
since been corrected to show his rank to be LTC.  His application to this
Board is dated        5 January 2004.  Some event occurred between November
2003 and 5 January 2004 to give the applicant at least constructive notice
that his "appointment" to COL in 2003 was erroneous.

11.  For the sake of this Discussion, the latter date, 5 January 2004, will
be used as the date he received notice his "appointment" to COL in 2003 was
void.  The applicant should be considered to have held the rank and grade
of COL, O-6 during the period from 2 June 2003 through 4 January 2004 in a
de facto status.  He should be allowed to keep any pay and allowances
received at the higher grade during this period.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__jea___  __dsj___  __rjw_____ 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:

     a.  showing that he was appointed as a reserve commissioned officer as
a COL effective 29 April 2004 with a date of rank of 2 June 2002 (based on
the excess constructive credit awarded to him);

     b.  showing that he held the rank and grade of COL, O-6 during the
period from 2 June 2003 through 4 January 2004 in a de facto status and
allowing him to keep any pay and allowances he received at the higher grade
during this period;

     c.  showing that, if not already done so, his acceptance of his
appointment as a COL was implied (and therefore considered acceptance for
pay purposes) as of 29 April 2004 and,

     d.  if for some reason he is not currently being paid as a COL, O-6,
that his pay and allowances as a COL, O-6 be restarted effective 29 April
2004.

2.  If not already done so, the individual concerned must execute an oath
of office accepting appointment as a reserve COL.  This action must be
taken before the above corrections may take effect.

3.  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 records to show he was appointed to COL effective with his
execution of his oath of office, reaccession to active duty, and reporting
to active duty and as pertains to retention of all pay received to date.




            __James E. Anderholm___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100771                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041021                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |102.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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