RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2005
      DOCKET NUMBER:  AR20050004153


      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. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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 that he be restored to active duty as a
lieutenant colonel (LTC).  In the alternative, he requests that he be
promoted to LTC with a date of rank of 1 March 2000 and that his retirement
date be changed to the date he first became eligible to retire as an LTC
with all due back pay and allowances.

2.  The applicant states, in effect, he 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 LTC.  He
would like to be restored to active duty as an LTC if Field Artillery
Branch deems he is qualified.

3.  The applicant provides his retirement orders, his DD Form 214
(Certificate of Release or Discharge from Active Duty) and a 23 February
2005 letter from the U. S. Army Human Resources Command (USAHRC).

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was commissioned
a second lieutenant in the U. S. Army Reserve on 9 September 1983.  He
entered active duty on 9 September 1983.  He was promoted to Major (MAJ) on
1 April 1995.  He was subsequently considered but not selected for
promotion to LTC by the promotion selection board that adjourned in March
1999.

2.  The applicant was released from active duty on 31 December 1999 in the
rank of MAJ for the purpose of retirement after completing 23 years, 1
month, and 16 days of creditable active service and 16 years, 3 months, and
22 days of active commissioned service (ACS).

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 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 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 LTC with a date of rank and
effective date of 1 March 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 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.

7.  Title 10, U. S. Code, section 1558(a) states the Secretary of a
military department may correct a person's military records in accordance
with a recommendation by a special board.  Section 1558(b)(1)(C) states
such term ("special board") does not include a promotion SSB convened under
section 628 or 14502 of this title.

8.  Title 10, U. S. Code, section 1558(c)(2)(A) states a person who has
been involuntarily board-separated shall, with that person's consent, be
restored to the same status, rights, and entitlements (less appropriate
offsets against back pay and allowances) in that person's armed force as
the person would have had if the person had not been selected to be
involuntarily board-separated as a result of an action the record of which
is corrected under subsection (a).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was released from active
duty   on 31 December 1999 in the rank of MAJ after completing 23 years, 1
month, and 16 days of creditable active service and 16 years, 3 months, and
22 days of ACS.

2.  The evidence of record shows the applicant was selected for promotion
to LTC by a special selection board subsequent to his retirement.  He was
given a date of rank and effective date of rank of 1 March 2000.

3.  Title 10, U. S. Code, section 1558(c)(2)(A) states a person who has
been involuntarily board-separated shall, with that person's consent, be
restored to the same status, rights, and entitlements (less appropriate
offsets against back pay and allowances) in that person's armed force had
the person not been selected to be involuntarily board-separated.  However,
Title 10, U. S. Code, section 1558(b)(1)(C) specifically states the term
"special board" does not include a promotion SSB convened under section 628
or 14502 of this title.

4.  Nevertheless, the applicant's circumstances appear to be similar to
those of individuals involuntarily board-separated due to a special early
retirement board or a reduction-in-force board.  He was selected for
promotion by an SSB.  Had he been selected for promotion by the board that
adjourned in March 1999 he presumably would have accepted that promotion
and not have retired in December 1999.  His mandatory release date would
not have been until 2011.  He requests restoration to active duty.  If
otherwise eligible, it would be equitable to grant the applicant the relief
requested.

5.  If the applicant is not deemed to be qualified for restoration to
active duty, he requests he be promoted to LTC with a date of rank of 1
March 2000 and his retirement date be changed to the date he first became
eligible to retire as an LTC with all due back pay and allowances.  He
would have been eligible to retire as an LTC upon completing 3 years of
active duty in that grade, i.e., on 1 March 2003.

BOARD VOTE:

__jev___  __cvm___  __llmb__  GRANT FULL RELIEF

________  ________  ________  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 relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by:

     a.  determining if he is eligible for restoration to active duty; and

     b.  if he is eligible for restoration to active duty, voiding his
retirement of          1 December 1999 and reinstating him on active duty
effective 1 December 1999 in the rank of LTC with a date of rank and
effective date of rank of 1 March 2000;

2.  If he is determined to be not eligible for restoration to active duty,
correct his records by:
     a.  voiding his retirement of 1 December 1999;

     b.  showing he was promoted to LTC effective 1 March 2000 and remained
on active duty until 28 February 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 this 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 March 2003 in the
rank of LTC, with all due back retired pay to include any cost of living
adjustments.




                                  __James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004153                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.00                                  |
|2.                      |110.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]