MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 March 2001
	DOCKET NUMBER:   AR2000039663

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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:  In effect, that he be considered for promotion by a Special Selection Board (SSB) and reconsideration of a request to expunge an Officer Evaluation Report (OER), covering the period 14 May 1996 through 
24 October 1996, from his records.  

APPLICANT STATES:  In effect, that his reasons for requesting this action are contained in supporting documents enclosed with his application, which includes a statement from his counsel, an article titled “Dropping affirmative action”, and the original decisional document issued by this Board and supporting documents. 

COUNSEL CONTENDS:  In effect, that based on newly discovered evidence, the applicant, hereby requests reconsideration of an earlier 1998 decision of this Board.  Counsel indicates that the new evidence supporting this application is contained in a recently settled lawsuit, in which the Army admitted its promotion criteria was unconstitutional, and the Army’s recent decision to change this promotion criteria.  Counsel argues that had these changes been in effect when the applicant was considered for promotion, the results would have been different.  Further, had the applicant been aware of this information when he originally submitted his application to this Board, he would have based his request for relief on that, and this Board would have reached a favorable decision.  Counsel provides his expanded argument and supporting facts in his enclosed statement.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 9 December 1998, AR1999018465.

The applicant and his counsel frame this current request as a reconsideration of the Board's original consideration of the case on 9 December 1998, however this does not appear to be the case.  The only correction requested, in the applicant’s original 8 September 1998 application to this Board, was “I request the OER dated 960514 to 961024 be expunged from my records.”  

Promotion reconsideration by a SSB was not an issue or error listed in the applicant’s 1998 request.  In addition, it was not a factor addressed in the Board’s decisional document.  While this could have been a recommended remedy, had the Board granted relief, it was not requested by the applicant or specifically considered and addressed by the Board at the time. 

The applicant’s military records show that on 14 May 1985 he was appointed a Reserve commissioned officer, in the rank of first lieutenant, in the Judge Advocate General Corps (JAGC).  He was integrated into the Regular Army on 
3 February 1993, in the rank of major, and was first considered for promotion to lieutenant colonel by the Fiscal Year (FY) 1997 (97) Department of the Army (DA), lieutenant colonel, JAGC promotion selection board.  

The Board notes that neither the applicant nor his counsel provide any new evidence or argument that goes directly to expunging the contested OER form his records, which was the relief requested in his first application to this Board and the issue considered and addressed in the 1998 decisional document.

On 9 December 1998, the applicant’s request to expunge the contested OER from his records was considered by this Board.  After a thorough examination of the evidence, the Board concluded it was not convinced that the contested OER was negative.  A careful review revealed that the report contained the highest marks and numerical ratings possible, and that a commander’s inquiry into the contested OER, after a thorough investigation, found no validity to the applicant’s claim that he was the victim of vindictive reprisal and bias.  

In its 1998 review, the Board also concluded that that the Officer Special Review Board (OSRB) conducted an extensive and thorough review of the facts and evidence, which resulted in their proper conclusion that there was insufficient evidence to expunge the contested OER from the applicant’s official record.  Finally, the Board found that the applicant had failed to meet the burden of proof necessary to establish that the contested OER was inaccurate and unjust because he failed to provide sufficient evidence to support his contentions.

In 1999, the U.S. District Court for the District of Columbia and the U.S. Army agreed to settle a lawsuit by two JAGC lieutenant colonels who claimed that the affirmative action portion of instructions used by the colonel’s promotion board violated their equal protection and due process rights under the Fifth Amendment of the Constitution.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel through a SSB.  

Subsequent to the settlement referred to in the preceding paragraph, the Office of The Judge Advocate General (OTJAG) of the Army has rendered several legal opinions in regard to this affirmative action issue and have consistently held that the equal opportunity language contained in promotion board MOIs during the period in question were legal.  

On 5 June 2000, the U. S. Court of Federal Claims established, in a case concerning an officer selected by a Selective Early Retirement Board (SERB) for early retirement, that the Memorandum of Instruction used by the SERB was invalid because it was narrowly tailored.  It also established that the Army’s tailoring of its policy to cover personal discrimination at both Phases I and II of the SERB process unconstitutional.  However, the ruling in this case is not final and has not yet been subject to appeal by the government.  Therefore, the government’s position remains that these instructions are legal.

In December 2000, a copy of an example of one of the legal opinions rendered by OTJAG, prepared in May 2000, was provided to the applicant and his counsel in order to provide them an opportunity to respond.  This particular OTJAG opinion, prepared by the Administrative Law Division, specifically found no legal objection to the equal opportunity language contained in the instructions to the FY 96, FY 97 and FY 98 lieutenant colonel, JAGC promotion selection boards.  

On 29 February 2001, the applicant’s counsel provided a rebuttal to the OTJAG opinion.  Counsel argues that the language used in this opinion, which indicated that the Secretary of the Army (SA) did not find the action of the promotion board that denied the applicant’s promotion was contrary to law, involved a material error, or lacked relevant information, was true only as far as it goes because, he explained, at the time the SA reviewed the promotion board results he did not possess the information contained in the applicant’s petition to this Board. 

Counsel further commented that OTJAG would naturally find that the EO instructions to promotion boards were not defective because they have a vested interest in doing so.  OTJAG is responsible for providing the Army’s defense in the lawsuits currently pending as a result of these EO instructions and would naturally defend those instructions.  

Finally, counsel referred to the Court of Federal Claims ruling, which found that the EO language used in the 1992 SERB was unconstitutional, and stated that to his understanding that EO language was nearly identical to the EO language used by the promotion boards that denied the applicant’s promotion.  

Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Paragraph 1-10 (managing promotions) places the responsibility for determining promotion eligibility (zones of consideration) with the Deputy Chief of Staff for Personnel (DCSPER) and approval authority with the SA.  

Further, the regulation states, in effect, that promotion boards will recommend those officers they determined to be best qualified, taking into consideration the needs of the Army as specified in the MOI to the board.  However, it also states that no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion.  It also stipulates that at the conclusion of a board, members must attest that to the best of their knowledge, the board carefully considered the records of each officer and that the officers recommended for promotion were, in the opinion of the majority of the members of the board, fully qualified and best qualified for promotion to meet the needs of the Army.

Paragraph 7-2 contains guidance on SSBs.  It states, in pertinent part, that SSBs may be convened when an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or the board that considered an officer from in or above the promotion zone did not have before it some material information.

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.  The Board notes that neither the applicant nor his counsel have submitted any new evidence or argument pertaining to the contested OER referred to in the application, which had previously been considered by this Board.  Therefore, this particular issue has not been reconsidered. 

2.  Promotion reconsideration has been granted by this Board in some previous cases based on 1999 U.S. District Court for the District of Columbia case and reasons of equity.  The Court settlement involved JAGC lieutenant colonels 
non-selected for promotion to colonel; likewise, in the previous cases where this Board granted relief, the applicant’s were also JAGC lieutenant colonels 
non-selected for promotion to colonel by all or some of the same promotion boards that non-selected the individuals involved in the settlement. 

3.  However, in this case, the Board finds that the same equity considerations referred to in the preceding paragraph do not apply.  The applicant is a major who was non-selected for promotion to lieutenant colonel so he was not considered by the same promotion selection boards that considered the individuals in the U.S. District Court case.  Further, although the Chief Judge of the U.S. Court of Federal Claims has held the challenged equal opportunity board instructions unconstitutional in a SERB case, it is noted this decision operates only as the law of that particular case.  

4.  The Board finds specific support for its findings and conclusions in this case in the legal review outlined in the 10 May 2000 OTJAG opinion.  This opinion specifically affirms that there is no legal objection to the equal opportunity language used by the FY 96, FY 97, or FY 98, lieutenant colonel, JAGC promotion selection boards, which includes the specific boards with which the applicant takes issue. 

5.  As a matter of Army policy, promotion selections are made based on the collective judgement of the promotion board members as to who they determine to be fully and best qualified.  There is no evidence in this case that would suggest that the promotion selections made by those promotion boards that denied the applicant promotion were made based on any other policy or basis.

6.  In the opinion of the Board, the applicant has failed to provide any evidence that the promotion selection boards in question acted contrary to law, made a material error, or did not review some material information that was missing from his record.  Thus, the Board concludes that the regulatory burden of proof necessary to entitle the applicant to promotion reconsideration has not been met and therefore, consideration of his case by an SSB is not warranted. 

7.  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.

8.   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

___js  ___  ___cp___  ___le ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039663	
SUFFIX		
RECON	1998/12/26	
DATE BOARDED	2001/03/29	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0100	
2.		
3.		
4.		
5.		
6.