SUPPLEMENTAL RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050007597


      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.  A quorum was present during the
further consideration and deliberation.  The findings appearing in
proceedings dated 15 December 1999 (AR1997002854), 23 May 2001
(AR2000042653), 27 March 2003 (AR2002076754), and 23 November 2004
(AR20040006930) were affirmed.  The following additional findings,
conclusions, and recommendations were adopted by the Board.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The Board convened at the call of the Director on the above date to
reconsider the conclusions and recommendation appearing in proceedings
dated 15 December 1999 (AR1997002854), 23 May 2001 (AR2000042653), 27 March
2003 (AR2002076754), and 23 November 2004 (AR20040006930).

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following additional evidence:

      Exhibit E – DD Form 149 dated 16 June 2005








CONSIDERATION OF ADDITIONAL EVIDENCE:

26.  On 19 June 2005 information was received from the applicant in regard
to the decision of the Army Board for Correction of Military Records
(ABCMR) in Docket Number AR20040006930, dated 23 November 2004.

27.  The evidence submitted consists of a request for a waiver of
indebtedness in the amount of $16,991.18 as a result of corrections to his
mandatory release date (MRD).

ADDITIONAL DISCUSSION AND CONCLUSIONS:

25.  At the time of the original decision by the ABCMR, dated 15 December
1999 (AR1997002854), it was the intent of the ABCMR to make the applicant’s
record as administratively correct as it should properly have been at the
time.

26.  Because of multiple requests for corrections or clarification of
entitlements, development of new promotion consideration procedures and
diverse statuses, the applicant's case has been before the ABCMR on four
prior occasions.

27.  In the original case, docket number AR1997002854 (15 December 1999),
the Board found that the KYARNG's selective retention boards had been
tainted by politics.  It directed that the applicant be shown to have been
retained and awarded him constructive service credit and retirement points,
at the rate of 50 points per retirement year, with pay and allowances for
each year he was reinstated through an MRD to be determined.

28.  On 23 May 2001 (AR2000042653), the Board found that the applicant
should have been allowed to retain a USAR promotion to major.  It directed
he be transferred to the USAR on 8 June 1992, promoted to major on 9 June
1992 and shown to have served in that capacity until his MRD.  It also
determined that given the higher attendance requirements of the ARNG and
his demonstrated historical average retirement points earnings, the award
of the 50 points annually was unfair.  It directed his retirement points be
adjusted to 79 points per service year, until his MRD, and that he be paid
any additional monies due as if he had performed the additional IDT and AT
periods.

29.  In the Board's Supplemental Proceedings AR2002076754 (27 March 2003),
the Board found that direction to have this case referred to a standby
advisory board (STAB) could not be accomplished in a manner consistent with
its direction and law.  The Deputy Assistant Secretary (DASA) (Army Review
Boards) directed that a special National Guard Selection Advisory Board
(SAB) be constituted to review the issue of entitlement to promotion for
the KYARNG cases.  The SAB determined the applicant was qualified for
promotion and recommended that he be promoted to the rank of lieutenant
colonel effective 2 June 1996.  The Board accepted the SAB recommendations
and promoted him to the rank of lieutenant colonel, effective of 2 June
1996, contingent upon Presidential approval.  It also adjusted his
retirement points for the retirement years 1992 through his adjusted MRD
(but not to extend beyond the date of this decision) with entitlement to
all pay and allowances due him based upon this promotion and extension of
service.

30.  Prior to the final acceptance of the recommendation and actual
implementation of the procedures to properly process the promotion
recommendation, the Board's decisional document was forwarded to the
Defense Finance and Accounting Service (DFAS).  DFAS processed and issued
retroactive payment to the applicant as a lieutenant colonel through 21
October 2001.

31.  As a result of questions raised in the processing of the case it was
referred to the Office of the Judge Advocate General and the Office of the
General Counsel.  Upon review of the applicant's file, in preparation for
final administrative processing of his promotions, several procedural
discrepancies where found and it was determined that additional Board
action was necessary to correct these factors to properly afford the
applicant the recommended relief.

32.  Based upon these opinions, the ABCMR recommended that additional
action be taken as noted in it's decision dated 23 November 2004
(AR20040006930).

33.  These actions included transferring the applicant from the Kentucky
Army National Guard (KYARNG) to the Army Reserve (USAR) for the purpose of
affording him promotion first to major and then to lieutenant colonel.  As
a result of differences in National Guard and USAR retention regulations
and obtaining additional clarifying information as to the applicant's dates
of birth and commissioning, the Board determined that the latest date that
the applicant would have been allowed to serve was 20 September 1999.

34.  The applicant was born on 21 September 1946.  He was commissioned at
age 30 on 3 July 1977.  An officer in the rank of lieutenant colonel my
remain in an active status until they complete 28 years of service unless
they are over 25 years old at the time of commissioning.  Since the
applicant reached his 53rd birthday prior to completion of 28 years of
commissioned service, his MRD cannot exceed 20 September 1999.

35.  Due to the highly unusual situation that created the original error
and injustice; the multiple actions and corrections necessary to rectify
those errors and injustice; the necessity to apply varied regulations due
to changes of military status; the protracted time necessary to fully and
properly resolve the issues, and through no fault of the applicant, an
indebtedness of $16,991.18 was created.

36.  The corrections to the applicant's status and his adjusted MRD are
correct and appropriate in the circumstances.  The adjusted MRD is based on
the maximum age and time in service limits based in the pertinent laws.
The Board does not have the legal authority to adjust the MRD to a point
beyond the maximum periods established by law.

37.  However, the applicant could not have known that his retroactive
payment was in error and should not be held liable for its creation.

38.  While it is recognized that the Army is not liable for the erroneous
actions of its officers, agents, or employees, even though committed in the
performance of their duties, it would be in the interest of justice and
equity to grant the applicant a waiver of this indebtedness and to refund
to him any monies recouped in relation to this indebtedness.

39.  Title 10, U. S. Code, section 9837 provides that the Secretary may
remit or cancelled any part of a service member's indebtedness at the time
of that member's honorable separation.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_JNS____  __MJF__  __LGH__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

8.  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 granting the applicant a waiver of indebtedness and refund to
him any monies recouped in relation to the indebtedness and interest.




                                  __       John N. Slone__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |                                        |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051214                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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