PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 May 2000                   
	DOCKET NUMBER:   AR1999029515

	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:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		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 1997 (FY 97) (August) and the FY 98 boards and, in effect reinstatement on active duty in the event of promotion.

3.  The applicant states that he was wronged by a rater who played favorites by being given a career-ending Officer Evaluation Report (OER).  He made allegations of unethical conduct (showing favoritism towards one of the applicant’s subordinates and even having false permanent change of station orders issued for that subordinate so he could be reimbursed for a California State Bar examination fee) against his rater and the first inquiry by the Office of The Judge Advocate General (OTJAG) concluded there was ethical wrongdoing. However, Colonel M___, a member of the FY 97 (August) board, who was then the Executive, OTJAG, recommended to The Assistant Judge Advocate General (TAJAG) that the findings be rejected.  Another investigating officer was appointed and he found the allegations unsubstantiated.  This latter finding was approved by TAJAG.  He appealed the OER to the Officer Special Review Board, which denied his appeal.  He then appealed to this Board, which basically concluded that there was ethical wrongdoing and granted his appeal by removing the OER.  However, the damage had been done.  Based on that OER he was given less than career-enhancing assignments which, combined with who was the president of that promotion board, resulted in his nonselection for promotion. He was also nonselected for promotion by the FY 98 promotion board.  He believes it was because the equal opportunity instruction to both the FY 97 and FY 98 board was unconstitutional.  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 (reconsideration boards and collateral relief).

4.  The applicant’s military records show that he was commissioned out of the Reserve Officer Training Corps on 8 May 1976.  He received an educational delay and entered active duty as a Judge Advocate General’s Corps captain on   5 January 1980.  He was promoted to lieutenant colonel on 1 February 1994.  

5.  On or about 5 June 1991, the applicant was assigned to Fort Ord, CA as the Chief, Criminal Law.  MAJ B___ was his rater and COL S___ was his senior rater.  They gave him a very laudatory annual OER for the period ending 30 April 1992.  He was given a top-block, center-of-mass senior rating (3/0/0/0/0/0/0/0/0).

6.  The applicant received a permanent-change-of-station OER for the period ending 25 April 1993 from MAJ B___ and COL S___.  While his rater rated his performance as “always exceeded requirements” and his potential as “promote ahead of contemporaries,” he also commented that “However, his Criminal Law operation has gone from being a model of efficiency, to a place where his officers have voiced numerous complaints and have even requested to be moved to other duties.”  His senior rater gave him a 2-block rating (rating profile unknown).
The applicant appealed to have this OER removed from his records and on          11 December 1996, the Board granted his request.  (The Board notes that at that time the directive was to return the proceedings of the Board and all related documents to the Board for permanent filing.  They are filed on his restricted fiche.)

7.  On or about 26 April 1993, the applicant was assigned to the U. S. Army Legal Services Agency (USALSA), Falls Church, VA as the Senior Litigation Attorney.  He was given a top-block, center-of-mass rating (2/0/0/0/0/0/0/0/0) on his annual OER for the ending period 25 April 1994.  He was then assigned as the Chief, Tort Branch, USALSA and was given a top-block, center-of-mass rating (29/7/0/0/0/0/0/0/0) for his annual OER for the ending period 25 April 1995. 
He was given a top-block, center-of-mass rating (22/5/0/0/0/0/0/0/0) for his annual OER for the period ending 25 April 1996 and a top-block, center-of-mass rating (32/9/0/0/0/0/0/0/0) for his annual OER for the period ending 25 April 1997. On or about 22 June 1997, he was assigned to the Military Traffic Management Command, Western Area, Oakland Army Base, CA as a Staff Judge Advocate. He was given a top-block, center-of-mass rating (49/6/0/0/0/0/0/0/0) for his closeout OER for the period ending 30 September 1997.  He received a change-of-rater OER for the period ending 16 June 1998 and given a center-of-mass rating (under the new OER system) and a center-of-mass rating for his annual OER for the period ending 16 June 1999.

9.  The applicant retired on 1 February 2000.

10.  In 1999, the U. S. District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two JAG Corps 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 JAG Corps Promotion Selection Board.  An additional special instruction directed that only one JAG Corps 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.  This Board has 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). 

11.  The Department of the Army Secretariat policy regarding potential conflicts of interests between promotion board members is that the integrity of the board is absolutely paramount.  To prevent the appearance of partiality or conflict of interest, the board appointing authority will not appoint board members that the appointing authority knows to be related by marriage or birth (or adoption) to any officer in the considered population or to another board member.  When the appointing authority becomes aware of an apparent conflict of interest after board appointment but before the board is convened, the board member must be replaced.  When the appointing authority becomes aware of such information after the board convenes but before the board recesses, the board member may be removed and replaced at the appointing authority’s discretion after examining the potential for partiality, bias, or undue influence in board proceedings.  No otherwise valid board will be considered invalid solely due to the existence of a potential or apparent conflict of interest.

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 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 similar relief to the applicant.  Reconsideration by an SSB would be appropriate; however, the applicant has not shown how he would be harmed if the same (collateral) relief were not granted and so the Board concludes it would not be appropriate to grant the same relief.

3.  In addition to the reason shown above for the Board granting relief, the Board also finds merit in the applicant’s contention that Colonel M____’s membership on the FY 97 (August) promotion board may have worked to his detriment.  The Board acknowledges that Colonel M___’s membership did not violate the strict conflict of interest guidelines concerning board members.  However, the Board also considers that, while no officer of any branch should be tainted with any scandal of ethical wrongdoing, it is especially iniquitous for a JAG Corps officer to be so tainted in any degree.  Colonel M____ was at least peripherally involved in the questionable manner of exonerating the applicant’s rater of wrongdoing.  To prevent the appearance of partiality or conflict of interest, the Board concludes the applicant would have been granted promotion reconsideration, by the criteria of that particular board alone, based on this contention.  

4.  The Board concludes that the applicant’s contention that the assignments he received after receiving the OER for the period ending 25 April 1993 were less-than-career-enhancing because of that OER is purely speculative and so makes no determination regarding that contention.

5.  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 97 (August) Colonel Judge Advocate General’s Corps promotion selection board criteria and, if not selected by that board that his records be submitted to a duly constituted SSB for reconsideration under the FY 98 Colonel Judge Advocate General’s Corps promotion selection board criteria.  The SSBs will have only one JAG Corps officer sit on it and he or she will be a U. S. Army Reserve officer.  Neither Colonel M___ nor the applicant’s rater or senior rater from his OER for the period ending 25 April 1993 will be members of either one of the SSBs.  In addition, for the purposes of these SSBs, 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 he be reinstated on active duty and 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 the proceedings and related documents pertaining to the Board’s             11 December 1996 action be removed from his fiche and, if filed in his Official Military Personnel File, returned to the Board for permanent filing as originally directed.

BOARD VOTE:  

__eja___  __ewl___  __klw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Elzey J. Arledge, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999029515	
SUFFIX		
RECON		
DATE BOARDED	20000525	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.01	
2.		
3.		
4.		
5.		
6.