MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           14 February 2002                            
	DOCKET NUMBER:   AR2001056948

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 Colonel by a Special Selection Board (SSB) under the criteria of the Fiscal Year 1999 (FY99) Colonel, Judge Advocate General's Corps, Promotion Board.

APPLICANT STATES:  The applicant states that he believes the equal opportunity instructions given the FY99 board violated his rights to equal protection and due process under the Fifth Amendment of the United States Constitution and caused him to be non-selected.  "The instructions set quotas for selection of minorities and females and prescribed procedures for reconsideration of minorities and females should the number selected fail to meet the rate for all officers considered in the promotion zone of consideration (primary zone)."  In addition to providing discriminatory advantages to minorities, the instructions directed the board to use non-merit-based criteria in order to favor certain officers.  The instructions failed to insure that all officers received equal opportunity.  Additionally, in 1999, the Army agreed to settle a lawsuit brought by two other Judge Advocates who raised the same constitutional issues in the U.S. District Court.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to Colonel through an SSB.  Based on that case, the Army Board for Correction of Military Records (ABCMR) determined that, as a matter of equity, it would be in the interest of justice to grant the same relief to another individual whose case was before the ABCMR in Docket Number AR2000039358.  In that case, the ABCMR directed that the record of that individual be submitted to a duly constituted SSB for reconsideration for promotion to Colonel under the same criteria of the FY98 Judge Advocate General's (JAG) Corps Promotion Selection Board.  The applicant adds that it would be unjust to deny him the relief granted those other officers.  If he is selected for promotion, he requests that his date of rank and pay be adjusted accordingly.

In support of his request, the applicant submits:  a 3-page brief for the Board to consider; a memorandum from the Secretary of the Army, subject:  Selection Board Instructions-FY99 Colonel, JAG Corps, Promotion Selection Board, dated 19 July 1999; and three documents from the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia, consisting of a memorandum, subject:  FY99 Promotion List for Colonel, Judge Advocate General's Corps Competitive Category, dated 19 November 1999, a MILPER Message 
NR99-165, subject: FY99 Colonel JAG Corps Competitive Category Promotion Zones of Consideration, and a memorandum, subject:  Promotion Status, dated 3 November 2000. 

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

That he entered active duty on 30 June 1978, as a Second Lieutenant, Ordnance (OD) Corps.  On an unknown date, he became a full-time active duty student attending law school at government expense.  He performed on-the-job JAG Corps training during the summer when school was not in session.  He was promoted to Captain, OD, on 15 March 1982.

On 22 November 1990, the applicant was promoted to Major and, on 1 November 1995, he was promoted to Lieutenant Colonel.  His branch was Judge Advocate (JA) at the time of both promotions.  He was first considered for promotion to Colonel by the FY99 promotion board.

In 1999 in the U.S. District Court for the District of Columbia, the U.S. Army agreed to settle a lawsuit by two JAG Corps Lieutenant Colonels who claimed the affirmative action portion of instructions used by the Colonel's promotion boards for FY97 and FY98 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.  An additional special instruction directed that only one JAG Corps officer sit on the SSB and that he/she be a U.S. Army Reserve Officer.  Also, the original Memorandum of Instruction, paragraph 7 (Equal Opportunity) would be revised.  The Board has learned that by "FY99" the court meant the FY98 promotion board (convened and recessed in August 1998 for promotions to be made in FY99).

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.  The applicant has provided no evidence that indicates the FY99 promotion selection board violated his rights to equal protection and due process or caused him to be non-selected.

2.  In previous cases, the Board granted promotion reconsideration based upon the 1999 U.S. District Court for the District of Columbia case due to reasons of equity.  The Board granted reconsideration by SSB's for JAG Corps Lieutenant Colonels non-selected by either or both of the same promotion boards that non-selected the individuals involved in the settlement.

3.  This Board concludes that the same equity consideration does not apply to the applicant because he was not considered for promotion by the same boards (FY97 and FY98) that were referenced in the court settlement.  

4.  The Board granted relief to the individual in the case referenced by the applicant (AR2000039358) because that individual was first considered for promotion to Colonel by the FY98 board; one of the two boards involved in the U.S. District Court settlement.

5.  Further, the Board specifically finds the instructions and procedures used by the subject promotion board are not inherently unconstitutional.  The instructions used in the board are consistent with merit-based principles that govern the selection of officers for promotion and were race and gender neutral.  To the extent that race and gender may have been considered, the instructions were narrowly tailored to further the compelling Government interest of remedying actual past discrimination.

6.  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___  ___BJE __  ___JED _  DENY APPLICATION

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

INDEX

CASE ID	AR2001056948	
SUFFIX		
RECON	 	
DATE BOARDED	20020214	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	NA	
DISCHARGE REASON	NA	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.0000	
2.		
3.		
4.		
5.		
6.