PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 May 2000                   
	DOCKET NUMBER:   AR2000040119

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		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 requests that he be reconsidered for promotion to colonel by the fiscal year 1997 (FY 97) (August) and the FY 98 boards and that his first two Officer Evaluation Reports (OERs) be removed from his records before reconsideration.

3.  The applicant states that it was the equal opportunity instruction, which he believes to be unconstitutional, given to both the FY 97 (August) and FY 98 board that caused him to be nonselected.  The Army has agreed to settle a lawsuit brought by two other judge advocates who raised the same constitutional issues in U. S. District Court.  It would be unjust to now deny him the relief granted those two officers, in addition to which his is a unique circumstance.  He was the prosecutor of the former Sergeant Major of the Army.  His prosecution directly affected race and gender relations throughout the entire Army.  He was constantly on the direct receiving end of allegations of Governmental and prosecutorial misconduct.  Six months into that legal battle his first promotion selection board met.  He is satisfied that the judge advocates who sat on his boards were not affected by the defense counsel’s smear tactics.  Race should not enter into the board selection process, yet he believes race did enter into it when it came to his file.  He believes that at least one African American officer sat on his first and second boards, at times when the prosecution of the Sergeant Major of the Army, an African American, was a “hot issue.”  Considering the part race played in his prosecution, he believes it rational to assume that his status had a negative effect on board members.  It has now been three years and emotions have cooled.  He believes reconsideration now would ensure that he received an unquestionably fair review unaffected by the high emotions of that time.  He also requests that his first two OERs be removed from his records.  When he entered the Army he was assigned as a defense counsel to the newly-created U. S. Army Trial Defense Service.  His senior defense counsel, and rater, was a fellow first-term judge advocate.  The new OER system was just being fielded.  Raters were told that honest appraisals were expected and his rater believed this guidance and applied it.  However, it soon became apparent that honest appraisals were not being used and inflated appraisals continued.  Today the Army has recognized the need to mask “developmental” OERs.

4.  The applicant’s military records show that he entered active duty on              17 December 1979 as a captain in the Judge Advocate General’s Corps.  

5.  The applicant received his initial OER for the period 5 April through 2 August 1980.  In part IVa he received two “2” ratings (with a range of “1,” to the highest degree to “5,” to the lowest degree).  His rater rated his performance as “usually exceeded requirements” (from a high of “always exceeded requirements” to a low of “usually failed requirements”) and his potential as “promote ahead of contemporaries” (the highest rating) and made all laudatory comments.  His senior rater gave him a 3-block, center-of-mass rating (2/10/38/7/0/0/0/0/0).

6.  The applicant’s second OER is a 5-month change of duty report for the period 3 August 1980 through 8 January 1981.  In part IVa he received one “2” rating.  His rater rated his performance as “usually exceeded requirements” and his potential as “promote ahead of contemporaries” and made all laudatory comments.  His senior rater gave him a 3-block, center-of-mass rating (7/14/84/10/0/0/0/0/0).

7.  The applicant was promoted to lieutenant colonel on 1 February 1994.

8.  In 1997, the applicant was assigned duties as the lead prosecutor in the case against the Sergeant Major of the Army.  The laudatory comments on his closeout OER for the period 14 June through 30 September 1997 relate almost exclusively to his performance of duties in this case.  Many of the laudatory comments on his permanent-change-of-station OER for the period 1 October 1997 through 24 June 1998 relate to his performance of duties in this case.

9.  In 1999, the U. S. District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two JAG Corps 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 to the Constitution.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel through a special selection board (SSB) representing the FY 97, FY 97 (August), and FY 99 Colonel JAG Corps Promotion Selection Board.  An additional special instruction directed that only one JAG Corps officer sit on the SSBs and that he/she be a   U. S. Army Reserve officer.  Also, the original Memorandum of Instruction, paragraph 7 would be revised.  This Board has learned that by “FY 99” the Court meant the FY 98 promotion board (convened and recessed in August 1998 for promotions to be made in FY 99). 

10.  Military Personnel message number 97-149 directed that, concurrent with the implementation of the new OER system on 1 October 1997, the Chief of Staff of the Army directed that access to active component second lieutenant OERs be restricted after promotion to captain.  Restricted access will be accomplished by moving all second lieutenant OERs maintained in the Official Military Personnel File (OMPF) from the performance to the restricted section during the month the officer is promoted to captain.  There is no policy guidance for removing the initial OERs from the OMPF of special branch officers who enter active duty in a grade higher than second lieutenant.

CONCLUSIONS:

1.  The Board fully supports the Department policies concerning racial and gender discrimination.

2.  Other than his contention, the applicant has provided no evidence that the promotion selection board failed to perform its duties of selecting the best qualified officers for promotion regardless of race, gender or national origin.  However, the Board notes that the applicant was considered by one of the same promotion boards that considered the two officers mentioned by him as successfully obtaining relief after filing suit in Federal court.  As a matter of equity, it would be in the interest of justice to grant similar relief to the applicant. 

3.  The Board notes that the applicant’s contention that the African American (if such was the minority member’s race) member on his boards automatically gave a prejudicial vote against him resulting in his nonselection is not reasonable.  While one member of the board could have voted him a low score, if the score was too far out of line with the votes of the other members the DA Secretariat would have noted the aberrance and returned his record to the board for a relook. 

4.  The Board concludes that is not appropriate to remove the applicant’s first two OERs from his records based upon the reason he puts forth.  Under current policy such a “masking” is available only for second lieutenant OERs.  The Board notes that these OERs did not prevent his promotion to lieutenant colonel.  This type of relief would not be available to any other JAG Corps officer.

5.  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 submitting the applicant’s records to a duly constituted SSB for reconsideration for promotion to colonel under the FY 97 (August) Colonel Judge Advocate General’s Corps promotion selection board criteria and, if not selected by that board that his records be submitted to a duly constituted SSB for reconsideration under the FY 98 Colonel Judge Advocate General’s Corps promotion selection board criteria.  The SSBs will have only one JAG Corps officer sit on it and he or she will be a U. S. Army Reserve officer.  In addition, for the purposes of these SSBs, the original Memorandum of Instruction will be revised by striking the original paragraph 7 and inserting the following in its stead:

“7.  Equal Opportunity.  The Army is committed to unbiased consideration of officers for promotion.  You may not consider the race, gender or ethnic background of an officer in the course of your review and selection of officers for promotions.  For purposes of this board, the foregoing guidance is required and takes precedence over the guidance contained in DA Memorandum 600-2, para A-10c(2) & (3).  You will not refer to DA Memorandum 600-2, para A-10(2) & (3) or use the procedures for review described therein.”

2.  That if the applicant is selected for promotion his records be further corrected by promoting him to colonel and assigning the appropriate date of rank with all due back pay and allowances or by assigning him the appropriate promotion sequence number.

3.  That if the applicant is not selected for promotion, he be notified accordingly.

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

BOARD VOTE:  

__eja___  __ewl___  __klw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Elzey J. Arledge, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR200040119	
SUFFIX		
RECON		
DATE BOARDED	20000525	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.