MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:               4 December 2001                
	DOCKET NUMBER:      AR2001061088

	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	
	Ms. Margaret K. Patterson		Member	
	Mr. Eric N. Andersen		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, promotion reconsideration to colonel by special selection boards (SSB’s) under 1997 through 1999 criteria, recall to Reserve duty, back pay and allowances and payment of attorney fees and costs.

APPLICANT STATES:  Applicant defers to counsel. 

COUNSEL CONTENDS:  That the 1997 through 1999 promotion selection boards were composed by utilizing race-based measures:  “racial and sexual classifications;” instructions given to the boards under the guise of “equal opportunity.”  These classifications established preferences in promotion for persons of some, but not all racial groups and women.  The applicant was unable to compete for promotion with his peers “without the burden of invidiously discriminatory disqualifications.”

Counsel contends that the declaration that the “equal opportunity” instructions utilized by the applicant’s promotion selection boards offended the equal protection clause of the United States Constitution.  A declaration that the racial and sexual classification utilized in composing the applicant’s promotion selection boards offended the equal protection clause of the United States Constitution and an order that the Army permanently cease the use of racial and sexual classification in the operation of any element of the military personnel system unless those classification are narrowly tailored measures that further compelling government interests.

Counsel also requests such further relief as the Board deems proper, specifically including, but not necessarily limited to, recall to Reserve duty retroactive to 1 July 2000 and extending until the applicant shall have been non-selected by SSB’s, back pay and allowances for the period extending from 1 July 2000 to the period until which the applicant shall be considered by an SSB and payment of attorney fees and costs incurred as a result of the challenge set forth.

Counsel references to Adarand Constructors, Inc v Pena, 515 U.S. 200 (1995), Christian v. United States, 46 Fed. Cl. 793 (2000), and Sirmans v. Caldera, 27 F. Supp 2d at 248, n.2(D.D.C. 1998), Northeastern Florida Chapter of the Association General Contractors of America v. City of Jacksonville, 508 U.S. 656,666 (1993) and Id.; Dynatlantic Corps. v Department of Defense, 115F.3d 1012, 1016 (D.C. Cir. 1997) in support of the contentions.

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

He was appointed in the Reserve, Infantry, as a captain effective 1 July 1979 with prior active duty service.

He was promoted to major effective 30 June 1986 and to lieutenant colonel effective 29 June 1993.
He was considered and not selected for promotion to colonel by the 1997, 1998 and 1999 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.  

He was honorably discharged and transferred to the Retired Reserve effective 1 July 2000.

His records were complete and without material error when reviewed by the 1997, 1998 and 1999 promotion selection boards.

During his service he completed Command and General Staff College and was qualified for promotion to colonel.  He also received various awards for meritorious service.

The applicant’s Official Military Personnel File (OMPF) microfiche shows officer evaluation reports (OER’s) as a captain he was generally rated within the center of mass (COM) by his raters and senior raters (SR’s)

As a major, the applicant received the following SR ratings:  0/2*/0/0/0/0/0/0/0/; 0/1*/0/0/0/0/0/0/0; 1*/3/0/0/0/0/0/0/0, 1*/0/0/0/0/0/0/0/0, 1*/0/0/0/0/0/0/0/0, 2*/0/0/0/0/0/0/0/0, and 2*/0/0/0/0/0/0/0/0.  Five different rating officers evaluated him and five different SRs evaluated him.  He received maximum ratings from the rating officers.

The applicant received 11 OER’s as a lieutenant colonel from 16 August 1993 through 25 September 1998.  He received the following SR ratings:  1/3*/0/0/0/0/0/0/0, 1/3*/0/0/0/0/0/0/0, 1*/0/0/0/0/0/0/0/0, 1*/1/0/0/0/0/0/0/0, 14*/6/2/0/1/0/0/0/0, 2*/0/0/0/0/0/0/0/0 (this OER was submitted without the rated officer’s (applicant) signature to preclude delays in processing, 1*/0/0/0/0/0/0/0/0, 1*/0/0/0/0/0/0/0/0.  In two evaluations, the SR was unable to evaluate the officer because he had not been the SR for the required number of days.  In his evaluations for the periods ending 12 December 1998 and 18 December 1998, he was rated COM. 

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 United States Code 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.

Current Reserve promotion policy specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which 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, except where an individual is not qualified due to non-completion of required military schooling. 

Army Regulation 15-185 governs the process of this Board.  This regulation specifies that “The Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records [Title] 10 U.S.C. 1552.”

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 is not entitled to promotion reconsideration to colonel by an SSB.  He has not shown that the 1997 through 1999 promotion selection boards were conducted illegally or unconstitutionally as a result of instructions to the promotion selection board concerning women and minorities. 

2.  The applicant nor counsel has shown that the instructions to the board were otherwise legally defective, or that instructions to the board caused his non-selections for promotion.

3.  The Board also notes that while the applicant may have a competitive record, it is further noted that, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of an RCSB determining an individual's potential and ability to perform at the higher grade.

4.  There is no indication that the applicant’s non-selection to colonel was unjust or inequitable.  There is no evidence of record that shows that his non-selection was contrary to law.  The promotion boards do not divulge the proceedings or reasons for non-selection, and this Board cannot determine why he was not selected for promotion.  Without evidence to show otherwise, the Board concludes that the applicant was properly considered for promotion.

5.  Based on the foregoing facts and conclusions, the Board concludes that the applicant has not provided evidence that the conduct or the results of the 1997 through 1999 promotion selection boards were flawed or otherwise improper.  The Board also concludes that the applicant did not present convincing evidence of a material error in his file at the time he was not selected for promotion by the 1997, 1998 or 1999 promotion selection boards.  Therefore, there is no basis for submitting the applicant’s records to an SSB. 

6.  His counsel’s reference to the various case law are noted; however, those decisions operate only as the law of those particular or similarly situated cases and do not hold precedence in this case.

7.  The Board further concludes that based on the preceding discussion, the applicant is not entitled to recall to Reserve duty or back pay and allowances.  He is also not entitled to payment of attorney fees and costs.

8.  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.

9.  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___  _mkp____  _ena____      DENY APPLICATION

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

INDEX

CASE ID	AR2001061088	
SUFFIX		
RECON		
DATE BOARDED	20011204	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.