RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 June 2004
      DOCKET NUMBER:   AR2004107125


      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. Larry C. Bergquist            |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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 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 September 1997 and that his retirement date be changed to
30 June 2002; that he receive constructive credit for active duty service
for an additional  5 years and 3 months; that he receive back pay and
allowances as an active duty COL from 1 September 1997 until 30 June 2002,
less offsets; that he receive the difference in retired pay between that of
a lieutenant colonel (LTC) with 24 years service and a COL with 30 years
service commencing 1 July 2002 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 5 June 1972.
He was promoted to LTC on 1 November 1989.  He was subsequently considered
but not selected for promotion to COL.

2.  The applicant was released from active duty on 31 March 1997 in the
rank of LTC for the purpose of retirement after completing 24 years, 9
months, and       26 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 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 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 March 1997 in the rank of LTC after completing 24 years, 9
months, and 26 days 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 September 1997.
Although his effective date of promotion is later than his actual date of
retirement, had he been selected for promotion in a timely manner it is
presumed he would have known he had been selected for promotion prior to
his retirement date and he would have elected to remain on active duty to
accept that promotion.

3.  It is also reasonable to presume that the applicant would have stayed
on active duty until he reached his mandatory release date as a COL.  He
would have reached that point on 30 June 2002.  As of that date, he would
have served over 3 years time in grade as a COL.  Therefore, it would be
equitable to show he would have retired as a COL on 1 July 2002 with
approximately 30 years of creditable active duty.
BOARD VOTE:

__fne___  __lcb___  __ecp___  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 1997;

     b.  voiding his retirement of 1 April 1997 and showing he remained on
active duty until 30 June 2002 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 July 2002 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                 |AR2004107125                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040615                                |
|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.                      |                                        |