PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:          15 November 2001
	DOCKET NUMBER:   AR2001052779

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests removal of his non-selections by the 1998 and 1999 colonel (COL) Judge Advocate General’s Corps (JAGC) Promotion Selection Boards based on improper instructions issued to those promotion boards in violation of his Constitutional rights.  He further requests promotion reconsideration to COL by a special selection board (SSB) without the unjust equal opportunity instructions. 

3.  The applicant states, in effect, error of improper instructions to the promotion boards and an illegible microfiche presented to the boards seriously prejudiced him, resulting in material unfairness and denied rights guaranteed by the Fifth Amendment to the U. S. Constitution.  He cites Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) in support of his contention of the use of improper instructions by the boards.  He further states that the Army Board for Correction of Military Records (ABCMR) should grant relief in the form of reconsideration for promotion to COL by SSB’s, and rewriting paragraph G-4(3) in the instructions provided to the SSB to read as follows: “(3) Most JAGC officers who complete CGSOC [Command and General Staff Officers College] do so by correspondence because there are few quotas made available to the JAGC each year.”  He also states that those instructions unfairly indicated to the board members that those officers whose files reflected that they had been selected for and attended the resident CGSOC were the top 10 percent of JAG officers and should be given priority for selection for promotion to COL.  In his case, this effect is particularly discriminatory.  He was passed over for promotion to lieutenant colonel (LTC) by the FY 1993 JAGC selection board and requested an SSB based on improper board composition.  While awaiting final determination on his SSB request, the first JAGC CGSOC selection board met when he was in the zone of consideration for selection to attend resident CGSOC.  It is his understanding that his file was not reviewed during the 1994 selection board as he was still in a non-promotable status.  As a result he did not receive equal opportunity for promotion.  He submits a copy of his 24 September 1999 request for an SSB, denial of his request dated 1 March 2000, and copies of the 1998 and 1999 Promotion Selection Boards Memorandum of Instructions in support of his request.

4.  The applicant’s microfiche military records provided to the Board are of excellent quality.  

5.  The records show that he was appointed in the Reserve, JAGC as a first lieutenant effective 28 May 1981 with 3 years constructive service credit.

6.  He was commissioned in the Regular Army, JAGC as a captain effective 16 May 1984. 

7.  He was considered and not selected for promotion to LTC by the 1994 and 1995 LTC JAGC Promotion Selection Boards.

8.  On 13 June 1994, he petitioned the Army Board for Correction of Military Records (ABCMR) requesting reconsideration for promotion under 1994 criteria.  The evidence presented, together with a memorandum, dated 3 November 1993, from the Total Army Personnel Command (PERSCOM), Promotions Branch, indicated that one of the officers who sat on the promotion board had been named, along with his wife, as a defendant in a lawsuit filed by the applicant in 1985.  The lawsuit was settled in the applicant’s favor in 1988.

9.  On 8 August 1994, the applicant appealed an officer evaluation report (OER) for the period ending 12 December 1984 to the Officer Special Review Board (OSRB), stating that the contested OER is adverse and should have been referred to him.  The OSRB returned his appeal without action, indicating that the appeal was not filed with its 5-year statute of limitations.

10.  On 16 September 1994, the Board recommended that the applicant’s records be reconsidered for promotion to LTC under 1994 criteria.

11.  He was considered and selected for promotion to LTC by an SSB.  He was promoted to LTC effective 1 January 1995.

12.  He was considered and not selected for promotion to COL by the 1998 and 1999 COL JAGC Promotion Selection Boards.

13.  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 LTC’s who claimed that the affirmative action portion of instructions used by the COL’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 COL through an SSB representing the Fiscal Year (FY) 1997, FY 97 (August), and FY 99 COL JAGC promotion selection board.  The Board has 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).

14.  The 1997, 1998 and 1999 JAGC COL promotion boards were issued the same instructions.

15.  On 1 March 2000 his request for promotion reconsideration, for the reasons as stated in this request, was denied by the Chief, Promotions Branch, Total Army Personnel Command (PERSCOM).  He was also advised that when his 

microfiche was reviewed, which was seen by the selection boards, it was found completely legible.  The copy of the microfiche sent to him was apparently poor quality due to the photocopying process.  The letter assured the applicant that the boards would have demanded another copy of his microfiche if it was unable to read the contents of the original fiche.

16.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on the active duty list and provides an equitable system for all officers.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error 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.

17.  The regulation also provides for notification of officers scheduled for consideration and the opportunity for officers to write to the board to provide documents and information calling attention to any matter concerning themselves that they consider important to their consideration.

18.  The regulation further provides that SSB’s are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.

19.  In previous cases such as this, relief was granted based on two officers who successfully obtained relief after filing suit in Federal court, and in which the relief was granted based on equity.  In these cases the promotion reconsideration boards to be convened under 1998 criteria were directed to issue replacement instructions regarding equal opportunity as follows:  “7.  Equal Opportunity. The Army is committed to unbiased consideration of officers for promotion.  You may not consider the race, gender or ethnic background for an officer in the course of your review and selection of officers for promotion.  For purposes of this board, the foregoing guidance is required and takes precedence over the guidance contained in DA Memorandum 600-2, para A-10c(2) & (3).  You will not refer to DA Memorandum 600-2, para A-10(2) & (3) or use the procedures for review described therein.”

CONCLUSIONS:

1.  The Board fully supports the Department policies concerning racial and gender discrimination.

2.  The Board notes the applicant’s contentions and notes that the applicant has provided no evidence that the promotion selection boards failed to perform its duties of selecting the best qualified officers for promotion regardless of race, gender or national origin.  However, the Board also notes that the same promotion board considered the applicant for 1998 that considered the two officers who successfully obtained relief after filing suit in Federal court.  As a mater of equity, it would be in the interest of justice to grant the same relief to the applicant.

3.  The applicant is not entitled to promotion reconsideration to COL by an SSB under 1999 COL JAGC promotion selection board criteria.  He has not shown that the 1999 COL JAGC Promotion Selection Board was conducted illegally or unconstitutionally as a result of instructions to the promotion selection board concerning women and minorities. 

4.  Although through a settlement agreement before the U. S. District Court, others were granted relief for reconsideration for promotion to COL through an SSB representing FY 1997 and FY 1998 COL JAGC promotion selection boards, it is noted this decision operates only as the law of those particular boards.  There is no evidence of record that shows that his 1999 non-selection was contrary to law.

5.  The applicant’s reference to case law has been noted; however, he has not shown error or injustice in his case based on his reference.

6.  The applicant’s contention concerning an illegible microfiche record is not supported by his application.  The PERSCOM advised the applicant that the copy of the microfiche sent to him might have been of poor quality as a result of the photocopying process.  The PERSCOM also advised him that the boards would have demanded another copy of his microfiche if it were unable to read the contents of the microfiche provided to the promotion board.  It is also noted the promotion board did not review the microfiche provided to the applicant, and that the microfiche provided to this Board was of excellent quality.  It is concluded therefore, that the applicant has not convinced the Board of error on this issue.

7.  The Board also notes his contention that the instructions pertaining to service school attendance at the resident CGSOC resulted in a material unfairness and denied him the right to equal opportunity for promotion.  However, the applicant has not shown that the instructions to the boards were otherwise legally 

defective, or that instructions to the boards concerning completion of the CGSOC caused his non-selections for promotion.  Therefore, it is concluded that the contention by the applicant regarding the resident CGSOC instructions given to those boards is without merit.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by submitting the applicant’s records to a duly constituted SSB for reconsideration for promotion to colonel under the 1998 Colonel Judge Advocate General’s Corps promotion selection board criteria.  In addition, for the purposes of this SSB the original Memorandum of Instruction will be reviewed by striking the original paragraph 7 and inserting the following in its stead:

	“7.  Equal Opportunity.  The Army is committed to unbiased consideration of officers for promotion.  You may not consider the race, gender or ethnic background for an officer in the course of your review and selection of officers for promotion.  For purposes of this board, the foregoing guidance is required and takes precedence over the guidance contained in DA Memorandum 600-2, para A-10c(2) & (3).  You will not refer to DA Memorandum 600-2, para A-10(2) & (3) or use the procedures for review described therein.”

2.  That the applicant be appropriately notified of the SSB consideration at least 30 days prior to the SSB consideration date, and provided the opportunity to write to the promotion board president, as appropriate under these circumstances, to provide documents and information calling attention to any matter concerning himself that he considers important to his consideration. 

3.  That if the applicant is selected for promotion his records be further corrected by promoting him to colonel based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes.

4.  That if the applicant is selected for promotion his records be further corrected by removing from his records all documents relating to the previous FY 1998 non-selection for promotion to colonel.

5.  That if not selected, the applicant be so notified.

6.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_sk_____  _kah____  _inw____   GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001052779	
SUFFIX		
RECON		
DATE BOARDED	20011115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.