RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 May 2004
      DOCKET NUMBER:   AR2004106180


      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. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 September 2000 and that he be paid
retired pay as a COL with 24 years of service commencing September 2003.

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 December 2000,
promoted to COL.  He does not specifically request that his records be
amended to show that he served those additional 3 years of active duty
unless such a correction is administratively necessary to facilitate the
payment of retired pay at the increased (i.e., 24) number of years of
service.

3.  The applicant states that, additionally, he does not seek back due
active duty pay.  He currently works for the Federal Government and that
pay, plus his current retired pay, would more than offset any back due
active duty pay.  It seems to him such a request would be excessive and
abusive and an undue windfall.  He does, however, seek back due retired
pay.  Although he is willing to waive the relief discussed in paragraph 2
above, he thinks it is only fair that he be treated the same as similarly
situated former officers.  If such relief is granted to them, he should be
similarly granted such relief and hereby requests the same.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned and entered active duty on 12 May 1979.
He was promoted to LTC on 1 January 1996.  He was subsequently considered
but not selected for promotion to COL.

2.  The applicant was released from active duty on 30 November 2000 in the
rank of LTC for the purpose of retirement after completing 21 years, 6
months, and 19 days of creditable active service.

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 the U. S. Army Human Resources Command (USAHRC)),
acting for the Secretary of the Army, under the provisions of amended Title
10, U. S. Code, section 628.  He was subsequently selected for promotion to
COL, with a date of rank and effective date of 1 September 2000.

5.  Title 10, U. S. Code, section 633 states that, unless retired earlier,
a Regular Army LTC (not recommended for promotion) will be retired the
first day of the month after the month in which the officer completes 28
years of ACS.

6.  Title 10, U. S. Code, section 634 states that, unless retired earlier,
a Regular Army COL (not recommended for promotion) will be retired the
first day of the month after the month in which the officer completes 30
years of ACS.

7.  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 November 2000 in the rank of LTC after completing 21 years, 6
months, and 19 days of ACS.  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 September 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 August 2003, at which time he would have completed
about 24 years,       3 months, and 19 days of creditable active service.

4.  Although the applicant specifically 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 September 2003 with approximately
24 years of service.
5.  While the Government appreciates the applicant's concern about
receiving an undue windfall, payment of back due active duty pay is also
administratively necessary.  Any undue windfall would be recovered by the
required offsets.

BOARD VOTE:

__fne___  __rd____  __ym____  GRANT 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.  showing he was promoted to COL effective 1 September 2000;

     b.  voiding his retirement of 1 December 2000 and showing he remained
on active duty until 31 August 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; and

     d.  showing he was placed on the Retired List on 1 September 2003 in
the rank of COL, with all due back retired pay to include any cost of
living adjustments.




            __Fred N. Eichorn_____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004106180                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040511                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.00                                  |
|2.                      |136.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |