MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 November 2000                   
	DOCKET NUMBER:   AR1999029862

	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. Thomas A. Pagan		Chairperson	
	Mr. Roger Able		Member	
	Mr. Thomas E. O’Shaughnessy, 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:  In effect, that he be reconsidered for promotion to lieutenant colonel by the fiscal year 1996 (FY 96) and, if necessary, subsequent lieutenant colonel promotion selection boards. 

APPLICANT STATES:  In effect, that it was the equal opportunity instruction, which the U. S. Court of Federal Claims declared in Christian versus The United States to be unconstitutional, given to the FY 96 and subsequent boards that caused him to be nonselected.  It would be unjust to now deny him the relief requested based upon that decision.

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

He was commissioned out of West Point in 1978 and entered active duty in the Infantry.  He was released from active duty in 1985.  He re-entered active duty in 1988 as a captain, Judge Advocate General’s Corps (JAGC).  He was promoted to major on 1 August 1992.  He was first considered for promotion to lieutenant colonel by the FY 96 JAGC lieutenant colonel promotion selection board.  He was subsequently considered and nonselected for promotion by the FY 97, FY 98, and FY 99 JAGC lieutenant colonel promotion selection boards.  

The applicant’s Officer Evaluation Reports (OERs) as a JAGC officer all contain highly commendable comments but show that his senior raters (SR) rated him as a center-of-mass or dual center-of-mass officer.  (His OERs as an Infantry officer show he had been senior rated as an above-center-of-mass officer several times.)

OER Ending Period		SR Block Rating (* indicates applicant’s rating)

26 January 1989		2/*4/1/0/0/0/0/0/0
26 January 1990		6/*7/5/0/0/0/0/0/1
26 January 1991		0/*2/0/0/0/0/0/0/0
8 April 1991			6/*16/0/0/0/0/0/0/0
6 December 1991		*45/58/21/0/0/0/0/0/0
31 August 1992		7/*9/0/0/0/0/0/0/0
20 July 1993			4/*14/0/0/0/0/0/0/0
13 May 1995			1/*2/0/0/0/0/0/0/0
13 May 1996			*3/2/0/0/0/0/0/0/0
1 January 1997		*6/0/0/0/0/0/0/0/0
11 July 1997			*8/1/0/0/0/0/0/0/0
30 September 1997		*15/1/0/0/0/0/0/0/0

The applicant was also rated as center-of-mass under the new OER system on OERs ending 30 September 1998 and 29 June 1999.

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 a case concerning an officer selected by a Selective Early Retirement Board (SERB) for early retirement, that the Memorandum of Instruction used by the SERB was invalid because it was not narrowly tailored.  It also established that the Army’s tailoring of its policy to cover personal discrimination at both Phases I and II of the SERB process was unconstitutional.

In the processing of this case, an advisory opinion was obtained from the Administrative Law Division, Office of the Judge Advocate General (SEE ATTACHED).  The opinion reiterates previous Office of the Judge Advocate General opinions that the equal opportunity instructions were legal.  The opinion was obtained prior to the ruling in the Christian versus The United States case.

A copy of the advisory opinion was provided to the applicant.  Counsel for the applicant responded by noting the Christian case.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In some previous cases, the Board granted the applicants promotion reconsideration based upon the1999 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.  In addition, the applicant’s records, as evidenced by his OER history, do not appear to be so meritorious as to convince the Board that the only reason he was       non-selected for promotion was due to the equal opportunity instructions.

3.  Although the Chief 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

__tap___  __ra____  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR1999029862	
SUFFIX		
RECON		
DATE BOARDED	20001121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.