PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           11 May 2000                   
	DOCKET NUMBER:   AR1999031972

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Christopher J. Prosser		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant’s initial request was that he be recalled to active duty in order to complete 20 years of active federal service for retired pay.  He has since altered that request as follows:

•	He requests that he receive credit for 20 years of active federal commissioned service, and that he be retired effective on 31 July 1999.
•	He requests that his DD Form 214 be corrected to reflect 20 years of net active service, that that form show his retired rank and pay grade as LTC, 05, respectively, and that the narrative reason for his separation be changed from voluntary early retirement to normal retirement.  He also requests a new      DD Form 214 be issued.
•	He requests that he receive all pay and allowances in pay grade 05 from his separation date on 30 November 1996 to his retirement date of 31 July 1999, offset by any compensation that he received while a civilian during this period, and any retired pay that he has received.
•	He requests that he receive retired pay in pay grade 05 from 1 August 1999 to the present date forward based on his 20 plus years of active federal commissioned service, less any retired pay he has received in that pay grade based on his early retirement showing 17 years, 4 months, and 22 days of service.
•	He requests that he be issued a certificate showing that he was promoted to Lieutenant Colonel with a date of rank of 1 September 1996, and that he be issued a certificate of retirement in the grade of Lieutenant Colonel, effective 31 July 1999. 
•	He states that if the aforementioned requests cannot be met, he requests that he be recalled to active duty as a lieutenant colonel to complete 20 years time in service, and that he receive a duty assignment at Fort Carson or Peterson Air Force Base in Colorado to facilitate a joint domicile with his wife, who is assigned to Fort Carson.

3.  The applicant’s original request and his statements to this Board are enclosed with his application and require no further clarification. 

4.  The applicant’s military records show that the applicant was retired from the Army on 30 November 1996 in the rank and pay grade of Major, 04, at Fort Carson.  His DD Form 214 shows that the reasons for his separation was voluntary early retirement.  He had 17 years, 4 months, and 22 days of net active service, and 1 month and 1 day of total prior inactive service.  

5.  On 23 July 1997 this Board granted his request to remove the senior rater and Departmental profile from Part VIIa of his OER for the period 8 October 1991 through 13 July 1992, and directed that the notification of denials of his appeals to the OSRB filed in his OMPF be removed.  The Board also directed that his records be submitted to a special selection board for promotion reconsideration for lieutenant colonel.  Copy of the Board’s decision is attached to the applicant’s request.

6.  The applicant was promoted to lieutenant colonel effective and with a date of rank of 1 September 1996. 
  
7.  Information received from the applicant revealed that he has been paid the difference between pay in pay grade 04 and pay grade 05 from                            1 September 1996 until his voluntary early retirement on 30 November 1996, and that he has been receiving retired pay in the pay grade of 05.

CONCLUSIONS:

1.  The applicant was promoted to lieutenant colonel retroactive to                       1 September 1996 by a special selection board.  Had he been promoted while on active duty he most assuredly would have remained on active duty until completion of 20 years of active federal service, and could have retired on        31 July 1999, the last day of the month during which he completed 20 years of service.         

2.  The applicant has been retired now for over 3 years, well past the                 31 July 1999 date.  To recall him to active duty to complete 20 years of service, as he had originally requested, would be an injustice to him.  He would have already completed those 20 years of service had he remained on active duty.  Considering the circumstances of his case, he should be credited with having served on continuous active duty until 31 July 1999. 

3.  Consequently, the applicant’s record should be corrected to show that he retired from the Army on 31 July 1999 in the rank and pay grade of LTC, 05; and that his retirement was for length of service.  He should be issued a new           DD Form 214 reflecting this information, to include the correct record of service data (item 12, DD Form 214).

4.  The applicant should receive all due pay and allowances in pay grade 05 from his separation date on 30 November 1996 to his retirement date of 31 July 1999, offset by any compensation that he received as a civilian during this period, and minus any retired pay that he has received.

5.  The applicant should receive retired pay in pay grade 05 from 1 August 1999 to the present date forward based on his 20 plus years of active federal service, less any retired pay that he has received in that pay grade based on his early retirement, showing 17 years, 4 months, and 22 days of service.

6.  He should be issued a certificate showing that he was promoted to Lieutenant Colonel with a date of rank of 1 September 1996.  He should be issued a certificate of retirement in the grade of Lieutenant Colonel, showing a retirement date of 31 July 1999.  

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

     a.  showing that he retired from the Army on 31 July 1999 in the rank and pay grade of LTC, 05; and that his retirement was for length of service.  He should be issued a new DD Form 214 reflecting this information, to include the correct record of service data (item 12, DD Form 214);

     b.  reimbursing the applicant all due pay and allowances in pay grade 05 from his separation date on 30 November 1996 to his retirement date of 31 July 1999, offset by any compensation that he received as a civilian during this period, and minus any retired pay that he has received;

     c.  paying the applicant retired pay in pay grade 05 from 1 August 1999 to the present date forward, based on his 20 plus years of active federal service, less any retired pay that he has received in that pay grade based on his early retirement showing 17 years, 4 months, and 22 days of service; and

     d.  issuing the applicant a certificate showing that he was promoted to Lieutenant Colonel with a date of rank of 1 September 1996, and issuing him a certificate of retirement in the grade of Lieutenant Colonel, showing a retirement date of 31 July 1999.  

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___cjp___  ___jma__  ___rvo__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999031972	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000511	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  338	110.00 	
2.	128.00	
3.	136.00	
4.		
5.		
6.