MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                   
	DOCKET NUMBER:   AR2001061164

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		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 by the fiscal year 1998 (FY 98) and FY 99 lieutenant colonel promotion selection boards. 

APPLICANT STATES:  In effect, that it was the equal opportunity instructions, which the U. S. Court of Federal Claims declared in Christian versus The United States to be unconstitutional, given to the FY 98 and FY 99 boards that caused him to be nonselected.  In 1999, the District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two Judge Advocate General’s Corps (JAGC) lieutenant colonels who claimed that the affirmative action portion of the instructions used by the colonel’s board violated their equal protection and due process rights.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel.  Based on this case, the Board held that as a matter of equity it would be in the interest of justice to grant the same relief to two later applicants.  He cites the applicable cases.  He submits that declining to provide the same relief in his case would be an arbitrary and capricious act.

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

After having had prior Army National Guard service, he was appointed a first lieutenant in the U. S. Army Reserve and entered active duty on 1 October 1986 in the JAGC.  He was promoted to major on 1 April 1994.  He was first considered and nonselected for promotion to lieutenant colonel by the FY 98 JAGC lieutenant colonel promotion selection board and considered and nonselected by subsequent promotion boards.

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 a special selection board (SSB).

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 Selective Early Retirement Board (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 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 (and in the two cases cited by the applicant), the Board granted the applicants promotion reconsideration based upon the 1999    U. S. District Court for the District of Columbia case and reasons of equity.  The Court settlement involved JAGC lieutenant colonels non-selected for promotion to colonel; the Board’s cases involved 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.  The individual in the U. S. Court of Federal Claims case was considered by a SERB, not a promotion board. 

3.  Although a Senior Judge of the U. S. Court of Federal Claims has held the challenged equal opportunity board instructions unconstitutional in a SERB case, it is noted his decision operates only as the law of that particular case. 

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

__rvo___  __rks___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001061164	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.