RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 October 2006
      DOCKET NUMBER:  AR20060002538


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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, in effect, promotion to lieutenant colonel
(LTC), effective 1 October 2004, all back active duty pay and allowances
from 1 October 2004 through 30 April 2005, and adjustment of his retired
pay (High-Three) computation to account for his active duty service as a
LTC.

2.  The applicant states, in effect, he was omitted from the consideration
for promotion to LTC by the Fiscal Year 2004 (FY04) promotion selection
board in error while he was serving in Iraq.  He was reconsidered and
selected for promotion by a Special Selection Board (SSB) that convened
while he was on terminal leave for retirement.  He states that had he been
aware that he was actively being considered for promotion, he would have
delayed his retirement.

3.  The applicant provides the following documents in support of his
application:  Human Resources Command (HRC), Promotions Branch, Memorandum,
dated 17 October 2005; Separation Document (DD Form 214); and Operation
Iraqi Freedom Deployment Orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that on 9 January 2003, he was deployed to
Iraq, an imminent danger pay area, in support of Operation Iraqi Freedom.
He served in Iraq through 14 January 2005.

2.  On 30 April 2005, the applicant was honorably released from active duty
(REFRAD) for the purpose of retirement, in the rank of major (MAJ), after
completing 21 years, 3 months, and 29 days of active military service.

3.  On 17 October 2005, the HRC Chief, Promotions Branch, notified the
applicant that he had been reconsidered and selected for promotion to LTC
by a SSB.  The notification memorandum indicated his sequence number was .5
on the FY04 promotion list, and that the effective date of his promotion
and his LTC date of rank would have been 1 October 2004.

4.  The application submitted to the Board was unclear regarding the
applicant's willingness to be reinstated on active duty, and/or whether the
relief he was requesting including a change to his retired grade to LTC.
As a result, a member of the Board staff contacted the applicant to clarify
these matters.

5.  The applicant responded to the Board staff inquiry by electronic mail
(e-mail) on 16 October 2006.  He indicated that his original application
was submitted only with the intent of obtaining his promotion, and any back
active duty and retirement pay due as a result of his serving as a LTC on
active duty from
1 October 2004 through 30 April 2005.  He indicates his request did not
include a change to his retired grade, and he fully intended to retain the
retired grade of MAJ.  He further stated that he considered reinstatement
at the time he was notified of the promotion in October 2005; however,
after discussions with his family, his current employer, and HRC promotion
officials, he elected not to pursue this option because it would have
required him to serve on active duty an additional 29 months.  He did
indicate, he is now willing to be reinstated on active duty through 30
September 2007 to obtain eligibility to retire as a LTC.

6.  Army Regulation 600-8-29 (Officer Promotions) prescribes the Army's
active duty Officer promotion policy.  Chapter 7 contains the policy for
SSB consideration and processing.  Paragraph 7-9 states, in pertinent part,
that SSBs will consider officers for promotion who should have been but
were not considered by a promotion selection or selective continuation
board.

7.  Title 10 of the United States Code, Section 1370 provides the legal
authority for retired grade.  It states, in pertinent part, 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 three years.  It further states, in pertinent part, that an
officer whose length of service in the highest grade he held while on
active duty does not meet the service in grade requirements shall be
retired in the next lower grade in which he served on active duty
satisfactorily, as determined by the Secretary of the military department
concerned, for not less than six months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show
he was promoted to LTC on 1 October 2004; that he should be provided all
back active duty pay and allowances due between 1 October 2004 and 30 April
2005; that his retirement pay computation (High-Three) should be
recalculated to account for his active duty service as a LTC between 1
October 2004 and
30 April 2005; and that he should be provided all back retired pay due as a
result, and the supporting evidence he submitted were carefully considered,
and were found to have merit.

2.  The evidence of record confirms the applicant was erroneously omitted
from consideration for promotion to LTC by the FY04 promotion selection
board, and that he was properly reconsidered and selected for promotion to
LTC under the FY04 criteria by a SSB.  HRC officials confirm the effective
date of his promotion would have been 1 October 2004.  Therefore, it would
be appropriate to correct the applicant's record to show he was promoted to
LTC, effective 1 October 2004, and to provide him all back active duty pay
and allowances, to include imminent danger pay, station allowances, and
family separation pay, for the period between 1 October 2004 and 30 April
2005, the date of his REFRAD for retirement.

3.  The application submitted to the Board was unclear on whether the
applicant was requesting a change to his retired grade, and it was silent
on his willingness to be reinstated on active duty to complete the three-
year active duty service obligation necessary to qualify to retire in the
grade of LTC.  As a result, the applicant was contacted to clarify these
matters.  His response indicated that his original application did not
include a request for reinstatement or a change to his retired grade.  He
also stated that he discussed reinstatement when he was notified of the
promotion, but decided against it because it would have required him to
serve an additional 29 months of active duty service.  As a result, he
elected not to request a change to his retired grade.  He further indicated
that he was now willing to be reinstated on active duty through 30
September 2007 in order to qualify for retirement in the grade of LTC.

4.  Although the applicant did not request a change to his retired grade or
reinstatement to active duty in his original application, because he was
contacted and has now indicated his willingness to be reinstated on active
duty to 30 September 2007, in order to qualify for a change in his retired
grade, a determination will be made on these issues.  It is clear there
were many valid reasons for the applicant not to request reinstatement when
he was notified of his promotion; however, it appears he took this action
voluntarily and with full knowledge that it would result in no change to
his retired grade.  Had the applicant not been offered this opportunity,
there may have been a more viable equity argument that would allow his
reinstatement to obtain eligibility for a change to his retired grade at
this time.

5.  Notwithstanding the many valid reasons the applicant had for making his
decision, it is clear he was briefed on the option to request reinstatement
on active duty to complete the service obligation required to be retired as
a LTC by HRC officials when he was notified of his promotion, and that he
voluntarily elected not to pursue this request because he did not want to
complete the required three-year service obligation to be eligible for a
change to his retired grade to LTC.  Therefore, it would not be appropriate
to reinstate him for a shorter period of service at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___MMD_  __JCR__  __RDG__  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 partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing he was promoted to LTC, effective 1
October 2004; by providing him all back active duty pay and allowances, to
include imminent danger pay/station allowances/family separation pay, due
between 1 October 2004 and
30 April 2005; by recalculating his retirement pay (High-Three) based on
the time served on active duty as a LTC between 1 October 2004 and 30 April
2005; and by providing him all back retired pay due as a result.

2.  The Board further determined that the evidence presented is
insufficient to warrant the applicant's reinstatement on active duty, or a
change to his retired grade to LTC.




                                  _____Melinda M. Darby____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002538                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/10/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/04/30                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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