MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 March 2001                   
	DOCKET NUMBER:   AR2001052780

	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 reconsidered for promotion to lieutenant colonel (LTC) by a Special Selection Board (SSB) under the criteria of the fiscal year 1995 (FY 95) and, if necessary, subsequent Judge Advocate General’s Corps (JAGC) LTC promotion boards.  If he is selected for promotion, that his date of rank and back pay be adjusted accordingly.  In the event the processing of this case continues beyond his required retirement date of 1 August 2001, that his retired rank be amended to LTC.

APPLICANT STATES:  In effect, that it was the equal opportunity instructions given to the FY 95 and subsequent boards that caused him to be non-selected. 
The Army agreed to settle a lawsuit brought by two LTC judge advocates who contested their non-selection for colonel by selection boards that had been given the same, or substantially the same, instructions as given to the JAGC LTC boards.  It would be unjust to now deny him the relief granted those two officers.

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

He was commissioned in the Judge Advocate General’s Corps in July 1981.  He was promoted to major on 1 February 1990.  He was first considered for promotion to LTC by the FY 95 LTC JAGC Promotion Selection Board.  He was subsequently considered and non-selected for promotion by the FY 96, FY 97, FY 98, and FY 99 LTC JAGC Promotion Selection Boards.  

The applicant’s Officer Evaluation Reports (OERs) contain commendable to highly commendable comments but show for the most part that his senior raters  rated him as a center-of-mass or dual center-of-mass officer. 

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

9 February 1982		0/0/*1/0/0/0/0/0/0
9 February 1983		0/1/*3/0/0/0/0/0/0

The above two OERs also contain ratings of “usually exceeded requirements” and “promote with contemporaries.”

16 November 1983		0/*1/0/0/0/0/0/0/0
31 May 1984			36/*43/26/0/0/0/0/0/0
17 September 1984		3/*4/8/2/0/0/0/0/0 
24 June 1985		9/*13/23/2/0/0/0/0/0 

20 October 1985		*10/16/29/6/0/1/0/0/0
12 July 1986			*14/20/29/6/0/1/0/0/0
12 July 1987			*17/22/29/6/0/1/0/0/0
19 January 1988		*21/24/29/6/0/1/0/0/0
29 June 1988		*23/25/29/6/0/1/0/0/0

The applicant had the same senior rater for the above five OERs.

19 May 1990			*2/1/0/0/0/0/0/0/0
19 May 1991			*3/2/0/0/0/0/0/0/0
19 May 1992			*3/0/0/0/0/0/0/0/0
19 May1993			*10/0/0/0/0/0/0/0/0
17 January 1994		*1/0/0/0/0/0/0/0/0
14 July 1994			*10/0/0/0/0/0/0/0/0
26 May 1995			*13/0/0/0/0/0/0/0/0 (he met the body fat standards)
26 May 1996			*9/4/1/0/0/0/0/0/0/0
9 December 1996		*41/0/0/0/0/0/0/0/0
3 August 1997		*37/16/0/0/0/0/0/0/0

30 September 1998		above center of mass
30 September 1999		above center of mass (he met body fat standards)
30 June 2000		above center of mass (he met body fat standards)

In 1999, the U. S. District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two active duty 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 is a major who was non-selected for promotion to lieutenant colonel so he was not considered by the same boards that considered the individuals 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.  The Board notes that the applicant had a group of OERs between October 1985 and January 1988 where he was rated as above center of mass.  However, it appears that his senior rater during that period was attempting to bring his rating profile to where he had a dual 1 and 2 block center of mass.  He was not rated as above center of mass again until after he had been non-selected for promotion several times.  

4.  There is no indication that the applicant’s non-selection to LTC was unjust or inequitable.  There is no evidence of record that shows that his non-selection was contrary to law.  Without being able to review all the records, the Board cannot determine why he was not selected for promotion.  Without evidence to show otherwise, the Board concludes that the officers who were recommended for promotion to LTC, JAGC were, in the promotion boards’ considered opinion, the best qualified.

5.  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	AR2001052780	
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.