RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 February 2006
      DOCKET NUMBER:  AR20050007949


      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. William D. Powers             |     |Chairperson          |
|     |Ms. Janet Strafer                 |     |Member               |
|     |Ms. Naomi Henderson               |     |Member               |

      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 reconsideration of his earlier request to change
his retired grade to Lieutenant Colonel (LTC), O-5 with a date of rank of 1
November 1999.

2.  The applicant states he was considered for promotion to LTC by a
special selection board (SSB) as a result of reverse discrimination, and
selected, after he retired.  His request was denied because the Board said
there was no provision of law to afford him the opportunity to retire as an
LTC since he did not serve in the higher pay grade.  However, Title 10, U.
S. Code, section 1370(a)(2)(B) states the President may waive the required
active duty obligation in individual cases involving extreme hardship or
exceptional or unusual circumstances.  He cites the subparagraph that
authorized a waiver of the 3-year active duty requirement.  The applicant
states his case is unusual because he was no longer on active duty when he
was selected for promotion.

3.  The applicant provides his request for an SSB; an extract from Title
10, U. S. Code; and an extract from Army Regulation 600-8-29.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040001371 on 3 March 2005.

2.  After having had prior enlisted service, the applicant was commissioned
       and entered active duty on 5 May 1983.  He was promoted to Major
(MAJ) on     1 November 1994.  He was subsequently considered but not
selected for promotion to LTC.

3.  The applicant was released from active duty on 31 May 2000 in the rank
of MAJ for the purpose of retirement after completing 20 years and 19 days
of creditable active service.

4.  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 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.

5.  The applicant applied to the U. S. Total Army Personnel Command, 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 November 1999.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was released from active
duty   on 31 May 2000 and retired in the rank of MAJ after completing 20
years and    19 days of active duty.

2.  The evidence of record shows the applicant was selected for promotion
to LTC by an SSB subsequent to his retirement.  He was given a date of rank
and effective date of rank of 1 November 1999.  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 completed 2 years of active duty as an LTC, on 31
October 2001, at which time he could have received a waiver of the
requirement to serve 3 years as an LTC before retiring as an LTC.
Therefore, it would be equitable to show he would have retired as an LTC on
1 November 2001.

BOARD VOTE:

__wdp___  __js____  __nh____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
amendment of the ABCMR’s decision in Docket Number AR20040001371 dated 3
March 2005.  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 LTC effective 1 November 1999;

     b.  voiding his retirement of 1 June 2000 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 LTC, with all due back retired pay to include any cost of
living adjustments.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007949                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060216                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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