MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 April 2001                   
	DOCKET NUMBER:   AR2000050088

	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 fiscal year 1999 (FY 99) Colonel Judge Advocate General’s Corps (JAGC) Promotion Selection Board.  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 FY 99 board that caused the applicant to be non-selected.  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.  A recent U. S. Court of Claims case, Christian v. United States, addressed the Army’s affirmative action instruction in the context of the fiscal year 1992 Army Lieutenant Colonel Selective Early Retirement Board (SERB).  It struck down the instruction as it applied to all members of the class of affected officers. 

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

He was commissioned a captain in the JAGC on 4 October 1981.  He was promoted to lieutenant colonel on 1 July 1995.  He was considered but not selected for promotion to colonel by the FY 99 Colonel JAGC Promotion 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. 

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

27 April 1982			15/45/*218/12/3/0/0/0/0
23 April 1983			8/*21/15/1/1/0/0/0/0
31 August 1983		*5/5/1/0/0/0/0/0/0
17 November 1983 		*2/0/0/0/0/0/0/0/0 
26 February 1984		*6/6/9/0/0/0/0/0/0 
4 January 1985		*14/12/4/2/0/0/0/0/0
28 May 1985			*19/13/4/2/0/0/0/0/0
28 May 1986			3/*3/1/0/0/0/0/0/0
28 May 1987			1/*2/1/0/0/0/0/0/0
28 May 1988			*3/2/1/0/0/0/0/0/0
31 December 1988		*4/3/1/0/0/0/0/0/0
11 June 1989		*6/3/1/0/0/0/0/0/0
17 May 1991			*25/0/0/6/0/0/0/0/0
17 May 1992			*14/14/6/0/0/0/0/0/0
17 May 1993			*19/14/6/0/0/0/0/0/0
15 December 1993		*21/21/0/0/0/0/0/0/0
17 June 1994		Not rated
17 June 1995		*28/31/0/0/0/0/0/0/0
31 May 1996			*58/40/8/0/0/0/0/0/0
31 May1997			*9/1/0/0/0/0/0/0/0
30 September 1997		*24/1/0/0/0/0/0/0/0
19 June 1998		above center of mass
29 March 1999		above center of mass

In 1999, the U. S. District Court for the District of Columbia and the U. S. 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 Constitution.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel through an SSB representing the FY 97, FY 97 (August), and FY 99 Colonel JAGC Promotion Selection Board.  The Board learned that by “FY 99” the Court meant the FY 98 promotion board (convened and recessed in August 1998 for promotions to be made in FY 99).

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 SERB for early retirement), that the Equal Opportunity instructions used by the SERB were 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 was non-selected for promotion to colonel by the FY 99 JAGC Colonel Promotion Selection Boards.  This promotion board was not at issue 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’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	AR2000050088	
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.