MEMORANDUM OF CONSIDERATION

	 

	BOARD DATE:            26 July 2001                  
	DOCKET NUMBER:   AR2000048165

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Eric N. Andersen		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, promotion reconsideration to colonel by special selection boards (SSB’s) based on the “equal opportunity” instructions utilized by the 1997 through 2000 Army Promotion List (APL) Colonel Reserve Components Selection Boards (RCSB’s).  He further requests recall to active duty and reconsideration for promotion by a proper board, with entitlement to back pay and allowances.

APPLICANT STATES:  Applicant defers to counsel. 

COUNSEL CONTENDS:  That the 1997 through 1999 promotion selection boards were “unconstitutional” and “illegal” because they were “instructed to give preference in the selection process of non-Caucasian racial groups and women.”

The applicant was never considered for promotion to colonel by a promotion selection board that did not utilize unconstitutional racial and sexual classification in its instructions and composition.  In support of his contentions, counsel submits a brief outlining the facts and the relief requested.

Counsel contends that the 1997 through 2000 promotion selection boards were given memoranda of instructions and associated documentation (“instructions”) which guided their deliberations by providing special consideration to minorities, detrimental to caucasians and men.

Counsel contends that the applicant was unable to compete for promotion with his peers without the burden of invidiously discriminatory disqualifications.  He was never considered for promotion to colonel by a promotion selection board that did not utilize unconstitutional racial and sexual classifications in its instructions and composition.  These are the reasons the applicant was not selected for promotion.

The applicant and counsel state he was involuntarily discharged effective 30 August 2000.

Counsel referred to case law in support of the contentions.

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

The applicant was appointed in the Reserve as a second lieutenant effective 9 August 1972.  He was promoted to first lieutenant effective 8 August 1975 and to captain 7 August 1979.

He was ordered to active duty in the Army Guard/Reserve (AGR) program effective 3 October 1983.

He was promoted to major effective 6 August 1986 and to lieutenant colonel effective 5 August 1993.

During his service he completed Command and General Staff College and was qualified for promotion to colonel.  He also received various awards for meritorious service.

The applicant’s Official Military Personnel File (OMPF) microfiche shows seven officer evaluation reports (OER’s) as a captain.  In these OER’s the applicant received most ratings of “1” in the elements of professional competence, and positive comments under professional ethics and competence from seven different raters.  (Ratings are from 1 to 5, with 1 the highest rating).  All seven raters placed him in the first block (Always Exceeded Requirements) under Part Vc for performance, and the first block (Promote Ahead of Contemporaries) in Part Vd, for promotion potential.

In the evaluations rendered, his senior raters (SR’s) placed him within the center of mass (COM) on 4 OER’s (0/8*/4/3/0/0/0/0/0, 0/2/4*/3/0/0/0/0/0, 0/7*7/5/0/0/0/0/0, 0/10*9/5/0/0/0/0/0).  He received two above COM SR profiles (6/11*/21/7/0/0/0/0/0 and 6/12*/21/7/0/0/0/0/0).  He also received one immature profile.  (The asterisk indicates the applicant’s position within the SR profile).

As a major, the applicant was evaluated seven times.  Five different rating officers evaluated him and six different senior raters evaluated him.  He received maximum ratings from the rating officers.

In the evaluations rendered as a major, the applicant received the following SR ratings:  1*/1/1/0/0/0/0/0/0; 3*/11/3/0/0/0/0/0/0; 0/2*/1/0/0/0/0/0/0/0; 1*/2/1/0/0/0/0/0/0, 0/2*/0/0/0/0/0/0/0, 0/1*/0/0/0/0/0/0/0 and 1*/0/0/0/0/0/0/0/0. In one evaluation, the SR was unable to evaluate the officer because he had not been his SR for the required number of days. 

The applicant received seven OER’s as a lieutenant colonel through 17 May 1999.  All of his rating officers gave maximum evaluations.  His SR profiles were six top blocks with two immature profiles, two above COM, two COM SR profiles and with one second block COM.

The SR profiles are as follows:  1*/0/0/0/0/0/0/0/0, 1*/1/0/0/0/0/0/0/0, 4*/1/0/0/0/0/0/0/0, 6/10*/0/0/0/0/0/0/0, 21*/31/3/0/0/0/0/0/0, 38*/43/3/0/0/0/0/0/0, and a one officer SR rating of COM under the current rating system.

He was considered and not selected for promotion to colonel by the 1997, 1998 and 1999 RCSB’s.  The boards did not divulge the reason(s) except that it was not for a lack of military education.  

On 28 June 2000, the applicant through counsel filed suit in civil court requesting relief from the court for continuation on active duty by operation of statute to a 20-year active duty retirement.

The applicant’s records were complete and without material error when reviewed by the 1997, 1998 and 1999 promotion selection boards.

Title 10 United States Code, Section 615 (10 USC 615) governs information furnished to selection boards convened under 10 USC 611a.  This provision of law states that the Secretary of the military department concerned shall furnish, inter alia, “such other information and guidelines as may be necessary to enable the board to properly perform its functions.”

Title 10 United States Code Section 628b provides that if the Secretary of a military department determines, in the case of a person considered but not selected by a promotion board, that there was material unfairness with respect to that person, then the Secretary concerned may convene a special selection board to determine if that person should be recommended for promotion.  Further, in order to determine if there was “material unfairness”, the Secretary must determine that:  A) the action of the promotion board which considered the person was contrary to law or involved material error of fact or material administrative error; or B) the board did not have before it for its consideration material information.

Current separation policy provides for involuntary separation of Reserve officers upon completion of 20 years of AFS.  It also provided at the time completion of 3 years of satisfactory service in the highest grade for length of service for retirement in that higher grade.

Current Reserve promotion policy specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling. 

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 applicant is not entitled to promotion reconsideration to colonel by an SSB.  He has not shown that the 1997 through 1999 promotion selection boards were conducted illegally or unconstitutionally as a result of instructions to the promotion selection board concerning women and minorities. 

2.  The applicant nor counsel have shown that the instructions to the board were otherwise legally defective, or that illegal instructions to the board caused his non-selections for promotion.

3.  The Board also notes that while the applicant may have a competitive record, it is further noted that, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of an RCSB determining an individual's potential and ability to perform at the higher grade.

4.  There is no indication that the applicant’s non-selection to colonel was unjust or inequitable.  There is no evidence of record that shows that his non-selection was contrary to law.  The promotion boards do not divulge the proceedings or reasons for non-selection, and this Board cannot determine why he was not selected for promotion.  Without evidence to show otherwise, the Board concludes that the applicant was properly considered for promotion.

5.  Based on the foregoing facts and conclusions, the Board concludes that the applicant has not provided evidence that the conduct or the results of the 1997 through 1999 promotion selection boards were flawed or otherwise improper.  The Board also concludes that the applicant did not present convincing evidence of a material error in his file at the time he was not selected for promotion by the 1997, 1998 or 1999 promotion selection boards.  Therefore, there is no basis for submitting the applicant’s records to an SSB. 

6.  The Board further concludes that based on the preceding discussion, the applicant is not entitled to recall to active duty.

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

_rvo____  __hof__  __ena___      DENY APPLICATION

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

INDEX

CASE ID	AR2000048165	
SUFFIX		
RECON		
DATE BOARDED	20010726	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.