MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 September 2001                   
	DOCKET NUMBER:   AR2000040850

	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. Ronald E. Blakely		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 to colonel/0-6(COL/0-6) by a Special Selection Board (SSB) using the criteria used by promotion selection boards convened in Fiscal Year (FY) 1994 (94) through FY99, and if selected, his date of rank be adjusted accordingly and he be provided all due back pay and allowances. 

APPLICANT STATES:  In effect, that his contentions are contained in the attachment from counsel.

COUNSEL CONTENDS:  In effect, that the conduct of the FY94 through FY99 COL, Army Nurse Corps (ANC), Medical Service Corps (MSC), Army Medical Specialist Corps (AMSC), and Veterinary Corps (VC), promotion selection boards was illegal because they were instructed to give preference to women and minorities in the selection process.  Counsel alleges that the equal opportunity language contained in the published instructions from the Secretary of the Army (SA) to promotion board members was unconstitutional.  He specifically claims that because each selection board selected the maximum number of officers it was permitted to select, any preference, advantage, or revoting in favor of one officer necessarily disfavored another officer.  Further, any change in the order of merit list of any selection board, to the advantage of one officer caused at least one other officer to change his or her position on the order of merit list to his or her disadvantage.  Each of the selection boards in question were instructed by the SA in a separate memorandum and these memoranda instruct each member of the promotion selection board of the specific criteria to be used in determining which officers should be promoted.  Specific instructions along with counsel’s expanded and complete argument in this case are contained in the enclosed counsel brief. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 10 October 1971, he entered active duty as a second lieutenant (2LT) in the MSC.  He continuously served on active duty in a commissioned officer status for 28 years and 21 days until being released from active duty (REFRAD) for the purpose of retirement on 31 October 1999.

The applicant was promoted to the rank of lieutenant colonel/0-5 (LTC/0-5) on 
1 September 1990, and was still serving in that rank the day he was separated from active duty.  On the day following his REFRAD, 1 November 1999, he was placed on the Retired List in that rank and pay grade.  

The applicant was first considered for promotion to COL/0-6 by the FY94 COL, MSC/ANC/VC/AMSC promotion selection board, which resulted in his not being selected for promotion.  

The applicant was also considered and not selected for promotion to COL/0-6 by the same category boards for FY95 through FY99.  The record is void of any suggestion that the applicant alleged or that any material error existed in his OMPF when it was reviewed by any of these COL selection boards. 

In 1999, the U.S. District Court for the District of Columbia and the 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 to the U.S. Constitution.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel through a SSB.  

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. 

On 19 July 2000, the Army entered into a settlement agreement with the applicant, which provided for his reconsideration for promotion to COL/0-6 by a SSB, using the criteria used by the FY94 COL, MSC/ANC/VC/AMSC promotion selection board, with the exception of the EO guidance used by that board.  This settlement pertained only to the FY94 board and left the remaining promotion selection boards for FY 95 through FY99 at issue before this Board. 

The applicant was reconsidered for promotion to COL under the terms established by the settlement agreement referred to in the preceding paragraph and on 5 September 2001, the Chief, Promotions Branch, U.S. Total Army Personnel Command (PERSCOM) advised the applicant that he was not recommended for promotion by the SSB and that his promotion status as determined by the regularly constituted board remained unchanged.  

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.  

Paragraph 1-35 states, in pertinent part, that promotion selection boards will base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the MOI and will keep confidential their reasons for recommending or not recommending any officer considered.  

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.  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 that this decision operates only as the law of that particular case.  Further, this ruling is not final and has not yet been subject to appeal by the government.  As a result, the Board finds no clear legal authority establishing that these instructions are not legally sufficient and it finds no legal imperative that requires granting the requested relief. 

2.  The Board did take special note of the fact that the Army entered into a settlement agreement with the applicant, which provided for him to be reconsidered for promotion to COL/0-6 by a SSB, under the criteria used by the FY94 COL MSC/ANC/VC/AMSC promotion selection board, except for the contested EO language, and that after this SSB consideration he was again not selected for promotion. 

3.  In the opinion of the Board, the applicant’s non-selection for promotion to COL by the SSB clearly establishes that the EO instructions were not the basis for his non-selection by the FY94 board.  In addition, while not conclusive, this provides support for the Board’s determination that there were likely reasons, other than the EO language, for his not being selected for promotion by the subsequent promotion selection boards at issue for FY95 through FY99.

4.  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 suggestion in the record that the promotion selections made by the boards in question were made based on any other policy or basis.  In addition, there is no indication that the EO instructions placed him at a competitive disadvantage or that he was treated any differently than every other officer who was reviewed for promotion by the promotion selection boards in question.  

5.  In the opinion of the Board, the applicant has failed to provide sufficient evidence to show that the FY95 through FY99 COL MSC/ANC/VCAMSC promotion selection boards 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.  Therefore, further consideration of his case by a SSB, using the criteria used by the FY95 through FY99 boards, is not warranted. 

6.  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

__JNS___  ___LE__  __REB___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040850	
SUFFIX		
RECON		
DATE BOARDED	2001/09/25	
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.  310	131.0000	
2.  311	131.0100	
3.		
4.		
5.		
6.