MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 March 2001                   
	DOCKET NUMBER:   AR2000048308

	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:

	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:  That he be promoted to Chief Warrant Officer Three (CW3) back dated to the effective date he would have been promoted had the fiscal year (FY) 1999 promotion board selected him for promotion.

APPLICANT STATES:  In effect, that it was the equal opportunity instruction, which the U. S. Court of Federal Claims declared in Christian v. United States to be unconstitutional, given to the FY 1999 boards that caused him to be nonselected. 

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

After having had prior enlisted service, he was appointed an Aviation Branch warrant officer on 1 September 1992 in military occupational specialty (MOS) 154C (CH-47D Pilot).  He was promoted to Chief Warrant Officer Two (CW2) on  1 September 1994.  He was first considered for promotion to CW3 by the FY 1999 Chief Warrant Officer Three, Four, and Five Aviation promotion selection board but was nonselected for promotion.  

The applicant’s Officer Evaluation Reports (OERs) senior rater potential evaluation history is as follows: 

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

15 November 1994		0/*2/0/0/0/0/0/0/0
1 August 1995		1/*1/3/0/0/0/0/0/1
20 November 1995		5/*10/3/0/0/0/0/0/0
26 September 1996		*4/5/0/0/0/0/0/0
30 September 1997		*44/5/0/0/0/0/0/0/0
31 August 1998		Center of mass
1 June 1999			Center of mass

The FY 1999 CW3 Aviation promotion board selected a total of 194 CW2s for promotion out of a total of 382 considered (not counting below the zone).  Of the 194 selected, 50.7 percent were white and 51.1 percent were minority; 50.9 percent were male and 40.0 percent were female (2 selected out of 5 considered).  MOS 154C had a total 44 considered (not counting below the zone); however, it had a promotion ceiling of only 21.  Twenty-one were selected, 7 from above the zone and 14 from the primary zone.

In 1999, the U. S. District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two Judge Advocate General’s Corps (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 special selection board (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 JAGC lieutenant colonels non-selected for promotion to colonel; the Board’s cases involved 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 CW2 who was non-selected for promotion to CW3 so he was not considered by the same boards that considered the individuals in the U. S. District Court case.  In addition, 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.  The applicant’s chances for promotion were further diminished by his MOS having a promotion ceiling which automatically limited the number of promotions in his MOS to less than half the population eligible for consideration.

3.  Although a Senior 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 his decision operates only as the law of that particular case. 

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

__jns___  __le____  __cjp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048308	
SUFFIX		
RECON		
DATE BOARDED	20010329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.