MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 March 2001
	DOCKET NUMBER:   AR2000048357

	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. 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:  In effect, that a Special Selection Board (SSB) consider him for promotion to chief warrant officer (CW5) using the criteria for the Fiscal Year (FY) 1997 (97), FY98, and FY99 CW5 promotion selection boards. 

APPLICANT STATES:  In effect, that the affirmative action policy that guided the Army selection boards since the early 1990s is what he believes resulted in his non-selection for promotion to CW5.  He also claims that the equal opportunity instructions contained in the Memorandum of Instruction (MOI) to the promotion selections boards from the Secretary of the Army (SA) violated his equal protection rights under the Fifth Amendment to the United States (U.S.) Constitution.  This written guidance instructs boards to select women and minority officers at rates comparable to the dominant race/gender group under consideration.  Promotion boards that did not meet race and gender goals were required to conduct file reviews and revote files.  The FY97 selection board selected both a female and a minority.  

In addition, the applicant states that the CW5 promotion zones of consideration were expanded from 12 to 18 months for the FY98 and FY99 boards.  This, he claims, added personnel to the primary zone who would normally have been below the zone and that no below the zone selections were made for his specialty by these boards.  The ceiling of three selections for his specialty for the FY99 board was met by selecting three personnel who would normally have been below the zone prior to the zone expansion.  These selections to CW5 would not have taken place if not for the expanded zones and resulted in missed opportunities for him to be selected for promotion, which makes clear the fact that these expanded zones disadvantaged him.  In support of his application, the applicant submits the SA MOIs issued to the FY97, FY98, and FY99 CW5 promotion selection boards and an Army Times article titled “Retired lieutenant colonel the latest to challenge Army affirmative action.”  

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

On 28 March 1979, he was appointed an Adjutant General (AG) Warrant Officer (WO) with a specialty of 711A, which later converted to 420A.  He was promoted to chief warrant officer four (CW4) on 1 March 1992 and is still currently serving on active duty at the AG School, Fort Jackson, South Carolina.  

The applicant was considered for and not selected for promotion by the 
FY97-FY99 CW5 promotion selection boards.  His Official Military Personnel File (OMPF) shows that the language used by his raters and senior raters in all the officer evaluation reports (OERs) he received as a CW4 was complimentary and that his senior rater evaluations placed him either in the in the center of mass (COM) or above the COM.

The applicant’s Officer Record Brief (ORB) shows that he completed the WO Senior Course in 1993, which resulted in his being granted a military education level (MEL) code of 4 and that his civilian education code was B, based on his having received an Associate of Arts (AA) degree in 1979.  

The applicant provided the enclosed Army Times article regarding a lieutenant colonel challenging the Army’s affirmative action policies, which have guided promotion selection boards.  The article addresses the challenge made by a Judge Advocate General Corps (JAGC) lieutenant colonel pertaining to the promotion board instructions used by the FY97 JAGC colonels board.  

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.  

Subsequent to the settlement referred to in the preceding paragraph, the Office of The Judge Advocate General (OTJAG) of the Army has rendered several legal opinions in regard to this affirmative action issue and have consistently held that the equal opportunity language contained in promotion board MOIs during the period in question were legal.  

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.  Therefore, the government’s position remains that these instructions are legal.

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.  

Further, the regulation states, in effect, that promotion boards will recommend those WOs they determined to be best qualified, taking into consideration the needs of the Army as specified in the MOI to the board.  However, it also states that no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion.  It also stipulates that at the conclusion of a board, members must attest that to the best of their knowledge, the board carefully considered the records of each officer and that the officers recommended for promotion were, in the opinion of the majority of the members of the board, fully qualified and best qualified for promotion to meet the needs of the Army.

Paragraph 7-2 contains guidance on SSBs.  It states, in pertinent part, that SSBs may be convened when an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or the board that considered an officer from in or above the promotion zone did not have before it some material information.

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, this Board granted the applicant’s promotion reconsideration based on the 1999 U.S. District Court for the District of Columbia case and reasons of equity.  This 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 individual involved in the settlement. 

2.  However, in this case, the Board concludes that the same equity considerations do not apply.  The applicant is a CW4 who was non-selected for promotion to CW5, so he was not considered by the same boards that considered the individuals in the U.S. District Court case.  

3.  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 this decision operates only as the law of that particular case.  

4.  By regulation, establishing the zones of consideration for promotion consideration is within the purview of the DCSPER and is accomplished based primarily on the strength by specialty needs of the Army.  In this case, there is no information that would suggest that the promotion selections made by those 
CW5 boards with expanded zones were based on any specific affirmative action goal or that the applicant was disadvantaged any more than any other CW4 competing for promotion at the time. 

5.  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 evidence in this case that would suggest that the promotion selections made by those promotion boards with expanded zones were made based on any other policy or basis.

6.  In the opinion of the Board, although the applicant’s service record is excellent, he has failed to provide any evidence that the promotion selection boards in question 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 and therefore, consideration of his case by a SSB is not warranted. 

7.  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

__js_____  __cp____  ___le ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048357	
SUFFIX		
RECON		
DATE BOARDED	2001/03/29	
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.		
3.		
4.		
5.		
6.