MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 April 2001                   
	DOCKET NUMBER:   AR2000044741

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. 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:  In effect, that he be reconsidered for promotion to colonel by a Special Selection Board (SSB) under the criteria of the calendar year 1994 (CY 94) and, if necessary, subsequent Reserve Components Colonel, Army Promotion List Selection Boards.  If he is selected for promotion, that his date of rank and back pay be adjusted accordingly.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  In effect, that it was the equal opportunity instructions given to the CY 94 and subsequent boards that caused the applicant to be nonselected.  The instructions did not meet the strict scrutiny test as decided under applicable U. S. Supreme Court precedent.  That test was recently reiterated in an Army promotion board case, Sirmans v. Caldera, No. 98-278 (RCL), in the U. S. District Court for the District of Columbia (5 November 1998), where the instruction was determined by the Court to constitute a racial classification.  More recently, the U. S. Court of Federal Claims addressed the Army’s affirmative action instruction in the context of the fiscal year 1992 Army Lieutenant Colonel Selective Early Retirement Board (SERB).  The Chief Judge, in a resounding denunciation of the social engineering efforts which these instructions undertake, struck down the instruction as it applied to all members of the class of affected officers.  In light of the Chief Judge’s opinion, there can be no question with respect to the appropriateness of the relief the applicant seeks. 

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

After having had prior enlisted service in the U. S. Army Reserve (USAR), he was commissioned a first lieutenant in the Judge Advocate General’s Corps (JAGC) in the USAR on 25 January 1975.  He was promoted to lieutenant colonel on 14 September 1990.  He was first considered for promotion to colonel by the CY 94 Reserve Components Colonel, Army Promotion List Selection Board.  He was subsequently considered and nonselected for promotion by the CY 95, CY 96, CY 97, CY 98, and CY 99 Reserve Components Colonel, Army Promotion List Selection Board.  

The applicant’s Officer Evaluation Reports (OERs) contain commendable to highly commendable comments but show for the most part that his senior raters (SR) rated him as a center-of-mass or dual center-of-mass officer.  In many cases he was the only rated officer in the rating profile.  Only one early OER shows that he was rated as below center of mass.

OER Ending Period		SR Block Rating (* indicates applicant’s rating)

10 September 1982		4/*1/0/0/0/0/0/0/0
6 July 1984			*3/0/0/0/0/0/0/0/0
12 July 1985			*4/0/0/0/0/0/0/0/0
1986 OER missing from Official Military Personnel File (OMPF)
17 July 1987			*1/0/0/0/0/0/0/0/0 
23 September 1988		0/*2/0/0/0/0/0/0/0 
1989 OER missing from OMPF
9 September 1990		*2/3/0/0/0/0/0/0/0
17 May 1991			*2/2/2/0/0/0/0/0/0
10 July 1992			0/*1/0/0/0/0/0/0/0
21 May 1993			1/*2/1/0/0/0/0/0/0
20 May 1994			*3/2/1/0/0/0/0/0/0
26 May 1995			1/*3/1/0/0/0/0/0/0
28 June 1996		0/*1/0/0/0/0/0/0/0
13 June 1997		*1/0/0/0/0/0/0/0/0
7 November 1997		*1/0/0/0/0/0/0/0/0
20 November 1998		center of mass (with a promotion potential rating of fully qualified)
19 November 1999		center of mass (with a promotion potential rating of best qualfied).

The statistical review of the CY 94 Reserve Components Colonel, Army Promotion List Selection Board is as follows:

Component JAGC 284 Considered, 20 Selected, 7 Percent Selected

The statistical review of the CY 95 – CY 99 Reserve Components Colonel, Army Promotion List Selection Board is as follows:

CY 95:

JAGC 105 First Time Considered, 20 Selected, 19 Percent Selected
JAGC 209 Previously Considered, 16 Selected, 8 Percent Selected
JAGC 314 Total Considered, 36 Selected, 12 Percent Selected

CY 96:

JAGC 116 First Time Considered, 65 Selected, 56 Percent Selected
JAGC 31 Previously Considered, 3 Selected, 10 Percent Selected
JAGC 147 Total Considered, 68 Selected, 46 Percent Selected

CY 97:  

JAGC 79 First Time Considered, 9 Selected, 11 Percent Selected
JAGC 165 Previously Considered, 3 Selected, 2 Percent Selected
JAGC 244 Total Considered, 12 Selected, 5 Percent Selected

CY 98:  

JAGC 96 First Time Considered, 10 Selected, 10 Percent Selected
JAGC 177 Previously Considered, 9 Selected, 5 Percent Selected
JAGC 273 Total Considered, 19 Selected, 7 Percent Selected

CY 99:  

JAGC 80 First Time Considered, 9 Selected, 11 Percent Selected
JAGC 188 Previously Considered, 9 Selected, 5 Percent Selected
JAGC 268 Total Considered, 18 Selected, 7 Percent Selected

In 1999, the U. S. District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two active duty 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 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 Christian v. United States (a case concerning an officer selected by a Selective Early Retirement Board (SERB) for early retirement), that the Equal Opportunity instructions used by the SERB was unconstitutional.  On 8 February 2001, that Court ruled that the results of that board are void.  However, the Government’s position remains that the instructions are legal; the ruling is not final and not yet subject to appeal by the Government; and the ruling is controlling only in that litigation.

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.  In some previous cases, the Board granted the applicants promotion reconsideration based upon the1999 U. S. District Court for the District of Columbia case and reasons of equity.  The Court settlement involved active duty JAGC lieutenant colonels non-selected for promotion to colonel; the Board’s cases involved active duty 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.

2.  In this case, the Board concludes that the same equity considerations do not apply.  The applicant is a USAR lieutenant colonel who was non-selected for promotion to colonel by Reserve Components Colonel, Army Promotion List Selection Boards so he was not considered by the same boards that considered the individuals in the U. S. District Court case.  Although a Senior Judge of the  U. S. Court of Federal Claims has held the challenged equal opportunity board instructions unconstitutional in the SERB case, it is noted his decision operates only as the law of that particular case. 

3.  The Board notes that the applicant was first considered for promotion by the CY 94 board.  That board had an extremely low (7 percent) overall selection rate for JAGC officers.  Since the statistics for that board were not broken down by first-time, previously, and total considered, it is possible that the selection rate for first-time considered JAGC officers was even lower than 7 percent.  The CY 95 board also had a low selection rate (8 percent for previously considered JAGC officers).  Even though the CY 96 board had a high total selection rate for JAGC officers, the selection rate for previously considered officers was only 10 percent. The applicant’s records, as evidenced by his OER history, do not appear to be so meritorious as to convince the Board that the only reason he was non-selected for promotion was due to the equal opportunity instructions even if it were assumed those instructions were legally defective.

4.  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

__jh____  __cla___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044741	
SUFFIX		
RECON		
DATE BOARDED	20010405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.