PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 December 2001                   
	DOCKET NUMBER:   AR2001063912

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Jose A. Martinez		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 that he be reconsidered for promotion to colonel by the fiscal year 1998 (FY 98) and FY 99 promotion boards. 

3.  The applicant states that it was the equal opportunity instruction, which he believes to be unconstitutional, given to the FY 98 and FY 99 boards and material errors that caused him to be nonselected.  The Army has agreed to settle a lawsuit brought by two other judge advocates who raised the same constitutional issues in U. S. District Court.  It would be unjust to now deny him the relief granted those two officers.  In addition, there were both factual and administrative errors in his FY 98 file.  He corrected his Officer Record Brief (ORB) as required but apparently the Personnel Service Battalion in Korea failed to send it.  Corrections included showing he had five awards of the Meritorious Service Medal (MSM), that he was the Senior Trial Counsel vice Trial Counsel while assigned to the XVIII Airborne Corps, and his photograph was updated.  His previous Reports of Separation from Active Duty, DD Forms 214, from his prior U. S. Navy Reserve and U. S. Marine Corps service were not seen by the promotion boards.

4.  The applicant’s military records show he had prior enlisted and commissioned service in the U. S. Navy Reserve and the U. S. Marine Corps from September 1967 – May 1980.  He entered the Army on active duty on 22 May 1980 as a captain, Judge Advocate General’s Corps (JAGC).  He was first considered for promotion to colonel by the FY 98 JAGC Colonel promotion selection promotion board.

5.  The applicant obtained several documents (the ORB, performance fiche, photograph, and officer evaluation report) seen by the FY 98 and FY 99 boards.  The information concerning his MSMs and duty title were updated on the ORB for the FY 99 board and a photograph dated June 99 was available to that board.

6.  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) representing the FY 97, FY 97 (August), and FY 99 Colonel JAGC Promotion Selection Board.  An additional special instruction directed that only one JAGC officer sit on the SSBs and that he/she be a U. S. Army Reserve officer.  Also, the original Memorandum of Instruction, paragraph 7 would be revised.  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).

7.  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 was 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.

8.  Army Regulation 600-8-29 governs the officer promotions functions of the military personnel system.  In pertinent part, it states that an SSB may be convened to consider an officer for promotion when it is discovered that the board that considered that officer did not have before it some material information.  An officer will not be considered by an SSB when the administrative error was immaterial or the officer in exercising reasonable diligence could have discovered the error.  Promotion boards consider information on an officer’s performance portion of the official military personnel file, not the restricted fiche (except in isolated, approved cases) or the service fiche.

CONCLUSIONS:

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

2.  Other than his contention, the applicant has provided no evidence that the promotion selection board failed to perform its duties of selecting the best qualified officers for promotion regardless of race, gender or national origin.  However, the Board notes that the applicant was considered by one of the same promotion boards, the FY 98 board, that considered the two officers mentioned by him as successfully obtaining relief after filing suit in Federal court.  As a matter of equity, it would be in the interest of justice to grant the same relief to the applicant.  

3.  The FY 99 board was not an issue for the two officers concerned in the successful Federal court suit and therefore it would not be appropriate to have an SSB consider the applicant under the FY 99 criteria because of the Federal court suit.  It does not appear to the Board that there was a material error in his records as they were considered by the FY 99 promotion board.  His ORB was updated, his photograph was up-to-date, and since the service portion of the OMPF was not considered by the board the fact his prior service DD Forms 214 were missing is immaterial.  

4.  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 FY 98 Colonel Judge Advocate General’s Corps promotion selection board criteria.  The SSB will have only one JAGC officer sit on it and he or she will be a U. S. Army Reserve officer. In addition, for the purpose of this SSB, the original Memorandum of Instruction will be revised 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 of an officer in the course of your review and selection of officers for promotions.  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 if the applicant is selected for promotion his records be further corrected by promoting him to colonel and assigning the appropriate date of rank with all due back pay and allowances or by assigning him the appropriate promotion sequence number.

3.  That if the applicant is not selected for promotion, he be notified accordingly.

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

BOARD VOTE:  

__inw___  __tl____  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001063912	
SUFFIX		
RECON		
DATE BOARDED	20011218	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.