MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 November 2001
         DOCKET NUMBER: AR2001054769

         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
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		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, promotion reconsideration to colonel (COL) by special selection boards (SSB’s) and by an Officer Professional Development Education (PDE) Selection Board for attendance at a senior service school or fellowship, not based on the “equal opportunities” instructions utilized by the 1996 through 1999 Army Promotion List (APL) COL Reserve Components Selection Boards (RCSB’s). He further requests recall to active Reserve duty, and back pay and allowances.

APPLICANT STATES: Applicant refers to counsel.

COUNSEL CONTENDS: That the 1997 through 1999 RCSB’s and the 1996 PDE were comprised by the Army utilizing instructions, policies and/or regulations which specify that certain numbers of persons of non-Caucasian racial groups as well as women must serve on the boards. The Army utilized no instructions, policies and/or regulations that specify that caucasians or men must serve on the boards. Before the 1996 through 1999 boards, the applicant was unable to compete for promotion with his peers “without the burden of invidiously discriminatory disqualification.” He also states that the “equal opportunity” instruction utilized by the applicant’s promotion and PDE selection boards offended the equal protection clause of the United States Constitution and established preferences in promotion for persons of non-Caucasian racial groups and women. He further states that because the applicant was not selected for advanced schooling by the 1996 PDE board, his ability to compete for promotion to COL was materially harmed.

Counsel referred to case law in support of his contentions.

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

He was appointed in the Pennsylvania Army National Guard (PA ARNG), with prior enlisted service, as a second lieutenant effective 27 January 1972.

He was separated from the PA ARNG and transferred to the USAR effective 10 January 1980.

He attained the grade of major effective 23 June 1986.

He was promoted to lieutenant colonel effective 15 May 1993.

The applicant’s Officer Evaluation Reports (OER’s) senior rater potential evaluation history from 23 June 1986 through 30 May 1998 is as follows:




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

23 Jun 1986                        0/1*/1/0/0/0/0/0/0
21 Jun 1987                        2/9/7/3*/1/0/0/0/0
08 Dec 1987                        5*/9/7/3/1/0/0/0/0
16 Sep 1988                        5/6*/2/0/0/0/0/0/0
01 Apr 1989                        0/0/2*/0/0/0/0/0/0
18 May 1990                        1/9*/16/1/0/0/0/0/0
21 June 1991              1/11*/16/1/0/0/0/0/0
29 May 1992                        0/1*/0/0/0/0/0/0/0
29 Jan 1993                        2*/2/0/0/0/0/0/0/0
23 Oct 1993                        1*/1/0/0/0/0/0/0/0
10 Oct 1995                        1*/0/0/0/0/0/0/0/0
10 Oct 1996                        3*/3/0/0/0/0/0/0/0
30 May 1997                        1*/0/0/0/0/0/0/0/0
30 May 1998                        4*/3/0/0/0/0/0/0/0

He was considered and not selected for promotion to COL by the 1996 through 1999 RCSB’s.

His records were complete and without material error when reviewed by the 1996 through 1999 RCSB’s.

He was transferred to the USAR Retired Reserve effective 26 January 2000. He was placed on the Retired List effective 27 January 2000.

There is no record of consideration or non-selection of the applicant by an Officer PDE Selection Board.

Title 10, USC, Section 615 (10 USC 615) governs information furnished to selection boards convened under 10 USC 611a. This provision of law states that the Secretary of the military department concerned shall furnish, inter alia, “such other information and guidelines as may be necessary to enable the board to properly perform its functions.”

Title 10, USC, Section 628b provides that if the Secretary of a military department determines, in the case of a person considered but not selected by a promotion board, that there was material unfairness with respect to that person, then the Secretary concerned may convene a special selection board to determine if that person should be recommended for promotion. Further, in order





to determine if there was “material unfairness”, the Secretary must determine that: A) the action of the promotion board which considered the person was contrary to law or involved material error of fact or material administrative error; or B) the board did not have before it for its consideration material information.

Current Reserve promotion policy specifies that promotion reconsideration may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

The Chief, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion that the applicant is requesting reconsideration for promotion consideration by an Officer PDE Selection Board. This type of board is not governed by Army Regulation 135-155, paragraph 31-4 nor is a Department of the Army Promotion board. Based on these facts, it was recommended the case be denied.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 9 May 2001. In a rebuttal dated 21 May 2001, his counsel states that the author of the staff advisory opinion is apparently confused as to the nature of the applicant’s claim. Counsel also states that the applicant advances a Fifth Amendment Equal Protection claim against the race-based measures employed by the Army Reserve in both the Fiscal Year (FY) 1996 Officer PDE Selection Board (sic) and the applicant advances the identical claim against the race-based measures employed by the Army Reserve in the FY 1996 through 1999 COL RCSB’s. Counsel further states that the applicant does not request “reconsideration for promotion consideration by an Officer PDE Selection Board, the applicant requests reconsideration for attendance at a senior service school through his selection by a reconsideration board not using race-based measures. Counsel also states that the applicant further requests a reconsideration board for promotion using his proper attendance at a senior service school, a promotion that was denied in part by his improper non-selection for school attendance and in part by the FY 1996 through 1999 promotion board’s use of race-based measure in promotion decision making. Counsel further states that the opinion is incorrect as a matter of law and is inconsistent with the explicit legal position set forth by the Secretary of the Army in related litigation.

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(s), it is concluded:

1. The applicant is not entitled to promotion reconsideration for promotion to COL or for attendance to a service school or fellowship. He has not shown that the 1996 through 1999 promotion selection boards were conducted illegally or unconstitutionally as a result of instructions to the promotion selection board concerning women and minorities. He also has not shown unfair consideration for an Officer PDE Selection Board.

2. The applicant nor counsel has shown that the instructions to the boards, including board membership, were legally defective, or caused his non-selections.

3. The counsel’s reference to case law has been noted; however, he has not shown error or injustice based on this case. The Board notes that the decision in the Christian v. United States 46 Fed. Cl. 792 (2000) acts only as the law of that case, and is not a binding decision in other cases. Accordingly, in the absence of binding legal precedent to the contrary, the Board rejects the constitutional challenge to the instructions.

4. Notwithstanding the related litigation referred by the applicant’s counsel to support the contentions, this Board notes that the instructions to promotion selection boards undergo legal reviews at the departmental level and there is no evidence that the equal opportunity instructions to the selection boards in question have been found legally objectionable during such reviews. Also, specific evidence of litigation related to this case has not been provided.

5. There is no indication that the applicant’s non-selections to COL or schooling were unjust or inequitable. There is no evidence of record that shows that his non-selections were contrary to law. The boards do not divulge the proceedings or reasons for non-selection, and this Board cannot determine why he was not selected for promotion. Without evidence to show otherwise, the Board concludes that the applicant was properly considered for promotion.

6. The Board concludes that while the applicant may have a competitive record, it is further noted that, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of selection boards determining an individual's potential and ability for selection. Furthermore, his performance of military duties, as recorded in his OER’s, is not sufficiently meritorious or otherwise distinguished to convince the Board that the reason he was not selected was due to any reason other than his performance and potential.

7. Based on the foregoing facts and conclusions, the Board concludes that the applicant has not provided evidence that the conduct or the results of the selection boards were flawed or otherwise improper. The Board also concludes that the applicant did not present convincing evidence of a material error in his file at the time he was not selected. Therefore, there is no basis for reconsideration.

8. The Board further concludes that based on the preceding discussion, the applicant is not entitled to recall to active Reserve duty.

9. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

10. 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

_fne_____ _kyf____ _bje____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001054769
SUFFIX
RECON
DATE BOARDED	20011108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.01
3.
4.
5.
6.