MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 April 2001                  
	DOCKET NUMBER:   AR2000037499

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolpi		Member	
	Mr. Harry O. Oberg		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to correct his military records by providing him with retroactive restoration to active duty with back pay and allowances, referring his case to a special selection board for promotion to lieutenant colonel and retiring him with twenty years of active federal service and waiving recoupment of any monies paid at the time of his separation under the 1992 Reduction in Force (RIF).

APPLICANT STATES:  In effect, that a recent court case established that affirmative action or equal opportunity (EO) provisions of the instructions to the RIF board were a violation of the equal protection provisions of the Constitution.

COUNSEL CONTENDS:  In effect, that the Supreme Court decision in 
Adarand v. Pena established the need to show a compelling governmental interest and that this test cannot be satisfied in this case.  Further, counsel contends that the case of Sirmans V. Caldera, NO 98-278 (RCL) the United States District Court extended the compelling governmental interest test to military promotion boards.  Additionally ,counsel contends that the requirements that the RIF selection board examine its results and reconsider the selection of female/minority individuals, if necessary, constituted an additional and unconstitutional consideration of those soldiers.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AC92-10614) on 10 March 1994.

The applicant’s contentions are new argument that requires Board consideration.

Enclosure 1 of the 9 March 1992 instructions for the RIF board contained guidance for the board and the members .  Paragraph 4, Minority and Female Officers states:

	a.  The Army is firmly committed to providing equal opportunity for minority and female officers in all facets of their career utilization and progression.  The goal of the board is to achieve a percent of minority and female officers recommended for involuntary separation not greater than the rate for all officers in the zone of consideration.  This goal is important because, to the extent the board achieves it, the Army at large will have a clear perception of equal opportunity and the officers not recommended for involuntary separation will enjoy the opportunity for continued military service to the benefit of the Army.  This goal is not intended to be, and will not be interpreted by you, as guidance for you to meet any “quota.”

	b.  In evaluating the records of minority and female officers, the Board should consider that past personal and institutional discrimination may have disadvantaged minority and female officers.  Such discrimination may include, but certainly is not limited to, disproportionately lower evaluation report, assignments of lesser importance or responsibility, and lack of opportunity to attend career-building schools.  Be alert to these matters when considering the weight to be given to particular matters contained in the records of these officers in your evaluation of their potential to make continued significant contributions to the Army.  

	c.  Prior to recess, the board (in the report of officers recommended for involuntary separation) must review and report the extent to which minority and female officers were recommended at a rate greater than the overall population.  Although the board may have met the overall goals for minorities and women, it will identify any situation in which minorities and female selectees were not comparable to the overall population in specific branches or where a particular minority-gender grouping did not fare well in comparison to the overall population.  Explain such situations fully in the board’s after-action report.

Enclosure 2 of the instructions provided administrative instructions for the RIF board’s procedures.  These included paragraph 3 which set forth the instructions for the procedure for the deliberations by which those to be involuntary separated were to be identified.  During Phase I each board member was to establish a numerical score for each individual officer and these scores were to be combined to establish an order of merit.  Phase II tentatively identified those officers who were to be involuntarily separated at which point statistical comparisons were to be made of the numbers of minority and female officers and the overall tentatively selected population.  Board members were to then determine if any of the above factors had be significant in any particular officers’ records and if necessary revote those records and adjust the order of merit.

A senior judge in the case of Christian v. United States in the United States Court of Federal Claims has held that the EO instructions in the Fiscal Year 1992 lieutenant colonel (Army Competitive Category) Selective Retention Board were unconstitutional and that the results of that Board are void.  Although the EO instructions are the same or essentially the same, the court ruling is not yet final and has not been appealed.  Therefore, the Government’s position is that the ruling is controlling only in that litigation.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  This Board notes counsel’s argument and the status of the court cases, but concludes that the information is not applicable to this case.

2.  Counsel’s assertion that the intent or procedures used by this RIF board did not meet the compelling governmental interest test is an opinion with which the Board does not agree. 
 
3.  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 and his counsel have failed to submit evidence that would satisfy this requirement.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JN____  __CLA__  ___HBO_  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR2000037499	
SUFFIX		
RECON		
DATE BOARDED	20010405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.040	
2.		
3.		
4.		
5.		
6.