PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 May 2000                   
	DOCKET NUMBER:   AR1999034654

	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) and, if necessary, subsequent boards. 

3.  The applicant states that it was the equal opportunity instruction, which he believes to be unconstitutional, given to the FY 97 and subsequent boards 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.

4.  The applicant’s military records show he entered active duty on 7 January 1978 as a captain, Judge Advocate General’s Corps (JAGC).  He was first considered for promotion to colonel by the FY 97 Judge Advocate General’s Corps Colonel promotion selection promotion board.

5.  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.  The 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).

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 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 the same relief to the applicant.  

3.  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 Colonel Judge Advocate General’s Corps promotion selection board criteria; if not selected by the FY 97 board that his records be submitted to a duly constituted SSB for reconsideration 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.  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 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.

BOARD VOTE:  

__eja___  __ewl___  __klw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Elzey J. Arledge, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999034654	
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.