RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         11 April 2006
      DOCKET NUMBER:  AR20050016970


      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:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rodney E. Barber              |     |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 colonel (COL) and
reinstatement on active duty.

2.  The applicant states, in effect, he was a two time non-select for
promotion to COL and felt his chances for promotion were low.  As a result,
he elected to retire on 31 January 2006, in lieu of accepting a permanent
change of station (PCS) reassignment based on the advice of his branch
manager and his supervisors.  He further states that Department of the Army
(DA), Human Resources Command (HRC) officials disapproved his requested
retirement date of
31 January 2006, but granted a retirement date of 31 October 2005.  He
claims he was selected for promotion to COL on 17 November 2005, and he
wants to accept this promotion.

3.  The applicant further states, in effect, that the COL promotion
selection board convened on 21 July 2005, and his is a very unique case
because no one could have predicted the outcome of this selection board for
an officer in his situation.  He claims that HRC officials and his leaders
provided him the best advice based on their experience and expertise.  Even
if he were on the list prior to his approved retirement date of 31 October
2005, this information could not be disclosed to him until it was
officially releasable on 17 November 2005.  He claims he desires to accept
the promotion to COL and continue his career.  He claims he only requested
retirement in lieu of PCS because as a Soldier with
26 years of service, he felt he had gone as far as he could in the Army,
but he was wrong.

4.  The applicant provides the following documents in support of his
application:  COL Promotion List; Retirement Request; and HRC Retirement
Approval Letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was commissioned out of the Reserve
Officer Training Corps (ROTC) on 27 May 1981.  He was promoted to
lieutenant colonel (LTC) on 1 May 1999.

2.  On 23 May 2005, the applicant submitted a request for voluntary
retirement.  He requested to be released from active duty (REFRAD) on 31
January 2006, and to be placed on the Retired List in the rank of LTC on 1
February 2006.  He further confirmed that he was submitting his retirement
request in lieu of complying with PCS instructions.

3.  On 17 August 2005, HRC disapproved the applicant's request for
retirement on 31 January 2006 because he had been officially notified of
his reassignment on 1 April 2005, and the governing regulation required
that the retirement date of a member retiring in lieu of PCS could not be
later than six months from the date of the alert or orders.  HRC did
approve his retirement on 31 October 2005.

4.  On 31 October 2005, the applicant was honorably REFRAD for the purpose
of retirement after completing 26 years, 0 months, and 3 days of active
military service, and on 1 November 2005, he was placed on the Retired List
in the rank of LTC.

5.  In connection with the processing of this case, an advisory opinion was
obtained from the HRC, COL's Division, Signal Corps Assignment Officer.
This HRC official states that based on the applicant's retirement in lieu
of PCS request, his retirement date was assigned in accordance with the
governing regulation.  He further states that once a retirement is approved
it will not be withdrawn nor will the effective date be extended.  He does
indicate that another provision of the governing regulation does appear to
have conflicting guidance in that although the regulation stipulates that
retirement applications submitted in lieu of PCS are final, it also allows
an officer with an approved retirement, who is subsequently selected for
promotion, to request to withdraw the application to accept the promotion.
He further states that in this case however, because the applicant's
retirement was no longer pending and he was already retired when the
promotion list was published, this provision of the regulation was not
applicable in his case.

6.  On 16 February 2006, the applicant responded to the HRC advisory
opinion.  He stated that he first wanted the Board to understand he had a
strong desire to return to active duty and accept his promotion to COL.  In
effect, he argues that the HRC timeline does not accurately reflect his
case.  He claims that fact remains that he was selected for promotion to
COL prior to the effective date of his retirement.  He states that the COL
promotion selection board convened in July 2005, and his request for
retirement was not approved until 17 August 2005, with an approved
retirement date of 31 October 2005.  He claims that the promotion selection
board adjourned on or about 30 August 2005, which means he was on the
promotion list before he retired.  He states that he understands that the
promotion list is not released until the officially designated date, but he
believes an exception is warranted in his case.  He claims that the
governing regulation allows an officer to withdraw an approved retirement
if he is subsequently selected for promotion.

7.  Army Regulation 600-8-24 (Officer Transfers and Discharges)prescribes
the officer transfers from active duty to the Reserve Component (RC) and
discharge functions for all officers on active duty for 30 days or more.
Chapter 6 contains the policies and procedures for retirement.  Paragraph 6-
18 provides guidance on processing retirements in lieu of PCS.  It states,
in pertinent part, that an officer may request the retirement to be
effective any date not later than
6 months from the date of the PCS alert or the first day of the month after
the officer attains 20 years active Federal service, whichever is later.
It further stipulates that once a retirement is approved, it  will not be
withdrawn nor will the effective date of the retirement be extended.
However, a request for an earlier date will be considered on an individual
basis.

8.  Paragraph 6-22 of the officer discharge regulation contains the rules
for processing a retirement withdrawal or change in retirement date.  It
states that a request to withdraw or change the effective date of approved
retirement applications will only be approved by HRC for promotion,
compassionate reasons, or for the convenience of the Army.  It further
states that retirement applications in lieu of PCS are final; however, it
also indicates that when an officer has an approved retirement pending and
is subsequently selected for promotion, he or she may request to withdraw
the application to accept the promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be reinstated on active duty to accept his
promotion to COL, and the supporting documents he submitted were carefully
considered.  However, the evidence of record confirms the applicant
voluntarily requested retirement in lieu of PCS in order not to comply with
reassignment instructions.

2.  The record also shows the applicant's retirement request was approved
with a modification of the requested retirement date based on regulatory
requirement that retirement not be later than six months after official
notification of the reassignment.  The governing regulation does allow
officers with approved retirements, who are subsequently selected for
promotion, to request to withdraw the retirement.  However, it also
stipulates that retirement applications in lieu of
PCS are final.  Therefore, it appears the regulation does not prohibit
denial of a request for withdrawal of a retirement application in lieu of
PCS even when an officer is subsequently selected for promotion.

3.  In the applicant's case, the retirement withdrawal regulatory
provisions are
not applicable since he was retired prior to being selected for promotion.
His contention is that he was on the promotion list because his selection
was
made when the promotion board adjourned, which was prior to his actual
retirement date.  However, this does not appear to be a compelling argument
since there are administrative requirements that must be completed
subsequent to a promotion board adjourning and before a promotion selection
list becomes official.  The release date of the promotion list is
established taking into consideration these administrative requirements.
No individual is officially on a promotion list, or promotable, until the
promotion list is officially released.  In this case, the promotion list
was released and became a valid promotion list on
17 November 2005, after the applicant has been placed on the Retired List.
As a result, it would not be appropriate, or fair to others in the same
situation, to grant his reinstatement and promotion request.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP_  __CAK  _  __REB __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  _____William D. Powers____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050016970                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/11                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/10/31                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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