MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 September 2001                  
	DOCKET NUMBER:   AR2000049118

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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:  Promotion to lieutenant colonel (LTC) with a date of rank of 16 October 1996, with reinstatement, back pay and allowances,  and retirement credit.  

He has subsequently amended his application to request reconsideration for promotion to LTC by special selection boards (SSB’s) under 1996 and 1997 criteria not using unconstitutional instructions and procedures.  He further requests the opportunity to submit a memorandum to each SSB, as is his right under the Reserve Officer Personnel Management Act.

He also amended his requested relief to request that the Army Board for Correction of Military Records (Board) when it adjudicated his application, to clearly address the issue (i.e., either state that it does not believe that it has the authority or legal expertise to decide this issue, or address the substantive basis of his application.)  This request is based on the Board’s denial of an officer’s application without even making an oblique reference to the promotion board instruction issue.

APPLICANT STATES:  He is challenging his non-selection due to the affirmative action policy instituted by the Department of the Army for the 1999 LTC promotion board.  He further states that he was never considered for promotion to LTC by a promotion selection board that did not utilize unconstitutional racial and sexual classifications in its instructions and composition.  These are the reasons he was not selected for promotion.  He cites case law in support of his contentions.  He submits copies of a newspaper article titled “Officers challenge affirmative action policy” from the Army Times and three pages of a memorandum subject “Memorandum of Instructions for the Calendar Year 1996 Reserve Component Lieutenant Colonel, Army Promotion List Selection Board” in support of his request.

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

He was appointed in the New Jersey Army National Guard (NJ ARNG) as a second lieutenant effective 5 June 1977.

He was appointed in the Reserve as a second lieutenant effective 1 November 1978.  He attained the grade of captain effective 28 July 1982.

Based on the required 7 years time in grade his promotion eligibility date for major was 27 July 1989.

He was promoted to major effective 11 April 1990 with a date of rank of 27 July 1989.  His promotion eligibility date for LTC was 26 July 1996.

He was considered and not selected for promotion to LTC by the 1996 and 1997 Reserve Components Selection Boards (RCSB’s).  The boards did not divulge the reason(s) except that it was not for a lack of military education.

His records were complete and without material error when reviewed by the 1996 and 1997 RCSB’s.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the records 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.

The regulation does not provide promotion reconsideration by an SSB based on the Army’s affirmative action policy.

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, USC, 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 an SSB 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.

The Chief, Promotion and Notifications Branch, Office of Promotions, Total Army Personnel Command, expressed the opinion, in effect, that the applicant is requesting reconsideration/promotion to LTC under the 1996 criteria based on the Army’s affirmative action policy.  Army Regulation 135-155 does not address affirmative action as a material error or a basis for reconsideration.  The applicant 

previously requested reconsideration under the 1996 and 1997 criteria and had no basis under either criteria.  Based on the facts presented, it was recommended the applicant’s request be denied.

The opinion was forwarded to the applicant for rebuttal on 26 February 2001.  In his rebuttal, dated 2 April 2001, he states that the 1996 and 1997 promotion boards were instructed to apply sex and race factors in making their selections.  They give preference to some and discriminate against others on the basis of their race and sex.  To the extent that race, ethnic background, and gender are not impediments to selection for promotion, our soldiers will have a clear perception of equal opportunity in the selection board.  He amended his request as shown above.  He challenged the constitutionality of the equal opportunity instructions given to his RCSB’s, specifically citing the decision in Christian v. United States, 46 Fed. Cl. 792 (2000).

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration to lieutenant colonel by an SSB.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions have been noted by the Board; however, they are not sufficiently supported by his records, his application, or the evidence of record.  There is no error or injustice in his record.  They were complete and without material error when reviewed by the 1996 and 1997 RCSB’s.

3.  While the Board notes his contention that his non-selections were due to the affirmative action policy instituted by the Department of the Army, it is not sufficiently supported by his application or the evidence of record.  He has not shown he did not receive fair and proper promotion consideration.  The Board notes that the decision in the Christian v. United States 46 Fed. Cl. 792 (2000) acts only as the law of that case, and is not a binding decision in other cases.  Accordingly, in the absence of binding legal precedent to the contrary, the Board rejects the constitutional challenge to the instructions.

4.  The Board does not dispute that he may have a competitive record, however, it notes that, as shown in this case, promotion and retention is not automatic based on qualifications alone, but includes a competitive process of a promotion board determining an individual's potential and ability to perform at 

the higher grade, and the needs of the service.  Particularly pertinent in this case is that many officers, including those with competitive records, will not be selected.

5.  Based on the foregoing, it is concluded that the applicant has not convinced the Board that the conduct or the results of the 1996 and 1997 promotion selection boards were flawed or otherwise improper.  It is also concluded that the applicant did not present evidence of a material error in his file at the time he was not selected for promotion by those promotion selection boards.  Therefore, there is no basis for promotion or promotion reconsideration. 

6.  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.

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

_jhl____  __mmh___  _kah____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049118	
SUFFIX		
RECON		
DATE BOARDED	20010918	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.