RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 May 2004
      DOCKET NUMBER:   AR2004107124


      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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be promoted to colonel (COL) with a
date of rank of 1 October 1997; that his retirement date be changed to 31
October 2001; that he receive constructive credit for active duty service
for an additional  2 years; that he received back pay and allowances as an
active duty COL from   1 October 1997 until 31 October 2001, less offsets;
that he receive the difference in retired pay between that of a lieutenant
colonel (LTC) with 28 years service and a COL with 30 years service
commencing 1 November 2001 with all future retired pay and cost of living
adjustments calculated on the basis of retirement as a COL with 30 years'
active service.

2.  Counsel states, in effect, that the applicant was considered by a
special selection board due to the unconstitutionality of the equal
opportunity language in the instructions to the original promotion board.
The applicant was subsequently, after his retirement, promoted to COL.  Had
he been promoted in a timely manner, he would have stayed on active duty
until he had completed 30 years of active commissioned service (ACS).

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned and entered active duty on 10 October
1971.  He was promoted to LTC on 1 September 1990.  He was subsequently
considered but not selected for promotion to COL.

2.  The applicant was released from active duty on 31 October 1999 in the
rank of LTC for the purpose of retirement after completing 28 years and 21
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 October 1997.

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 effective 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 31 October 1999 in the rank of LTC after completing his maximum
(28) years of ACS.

2.  The evidence of record shows the applicant was selected for promotion
to COL by a special selection board subsequent to his retirement.  He was
given a date of rank and effective date of rank of 1 October 1997.

3.  Since the applicant stayed on active duty until he reached his maximum
ACS as an LTC, it is reasonable to presume that had he been promoted to COL
in a timely manner he would have stayed on active duty until he reached his

maximum ACS as a COL.  He would have reached that point on 31 October
2001.  As of that date, he would also have served over 3 years time in
grade as a COL.

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 October 1997;

     b.  voiding his retirement of 1 November 1999 and showing he remained
on active duty until 31 October 2001 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 November 2001 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                 |AR2004107124                            |
|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.                      |                                        |