| Mr. Carl W. S. Chun | Director | |
| Ms. Rosa M. Chandler | Analyst |
| Mr. John N. Slone | Chairperson | |
| Ms. Barbara J. Ellis | Member | |
| Mr. John E. Denning | Member |
APPLICANT REQUESTS: That he be reconsidered for promotion to Colonel by a Special Selection Board (SSB) under the criteria of the Fiscal Year 1999 (FY99) Colonel, Judge Advocate General's Corps, Promotion Board.
APPLICANT STATES: The applicant states that he believes the equal opportunity instructions given the FY99 board violated his rights to equal protection and due process under the Fifth Amendment of the United States Constitution and caused him to be non-selected. "The instructions set quotas for selection of minorities and females and prescribed procedures for reconsideration of minorities and females should the number selected fail to meet the rate for all officers considered in the promotion zone of consideration (primary zone)." In addition to providing discriminatory advantages to minorities, the instructions directed the board to use non-merit-based criteria in order to favor certain officers. The instructions failed to insure that all officers received equal opportunity. Additionally, in 1999, the Army agreed to settle a lawsuit brought by two other Judge Advocates who raised the same constitutional issues in the U.S. District Court. The civil action was dismissed pursuant to those officers being reconsidered for promotion to Colonel through an SSB. Based on that case, the Army Board for Correction of Military Records (ABCMR) determined that, as a matter of equity, it would be in the interest of justice to grant the same relief to another individual whose case was before the ABCMR in Docket Number AR2000039358. In that case, the ABCMR directed that the record of that individual be submitted to a duly constituted SSB for reconsideration for promotion to Colonel under the same criteria of the FY98 Judge Advocate General's (JAG) Corps Promotion Selection Board. The applicant adds that it would be unjust to deny him the relief granted those other officers. If he is selected for promotion, he requests that his date of rank and pay be adjusted accordingly.
In support of his request, the applicant submits: a 3-page brief for the Board to consider; a memorandum from the Secretary of the Army, subject: Selection Board Instructions-FY99 Colonel, JAG Corps, Promotion Selection Board, dated 19 July 1999; and three documents from the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia, consisting of a memorandum, subject: FY99 Promotion List for Colonel, Judge Advocate General's Corps Competitive Category, dated 19 November 1999, a MILPER Message
NR99-165, subject: FY99 Colonel JAG Corps Competitive Category Promotion Zones of Consideration, and a memorandum, subject: Promotion Status, dated 3 November 2000.
EVIDENCE OF RECORD: The applicant's military records show:
That he entered active duty on 30 June 1978, as a Second Lieutenant, Ordnance (OD) Corps. On an unknown date, he became a full-time active duty student attending law school at government expense. He performed on-the-job JAG Corps training during the summer when school was not in session. He was promoted to Captain, OD, on 15 March 1982.
On 22 November 1990, the applicant was promoted to Major and, on 1 November 1995, he was promoted to Lieutenant Colonel. His branch was Judge Advocate (JA) at the time of both promotions. He was first considered for promotion to Colonel by the FY99 promotion board.
In 1999 in the U.S. District Court for the District of Columbia, the U.S. Army agreed to settle a lawsuit by two JAG Corps Lieutenant Colonels who claimed the affirmative action portion of instructions used by the Colonel's promotion boards for FY97 and FY98 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 an SSB. An additional special instruction directed that only one JAG Corps officer sit on the SSB and that he/she be a U.S. Army Reserve Officer. Also, the original Memorandum of Instruction, paragraph 7 (Equal Opportunity) would be revised. The Board has learned that by "FY99" the court meant the FY98 promotion board (convened and recessed in August 1998 for promotions to be made in FY99).
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicant has provided no evidence that indicates the FY99 promotion selection board violated his rights to equal protection and due process or caused him to be non-selected.
2. In previous cases, the Board granted promotion reconsideration based upon the 1999 U.S. District Court for the District of Columbia case due to reasons of equity. The Board granted reconsideration by SSB's for JAG Corps Lieutenant Colonels non-selected by either or both of the same promotion boards that non-selected the individuals involved in the settlement.
3. This Board concludes that the same equity consideration does not apply to the applicant because he was not considered for promotion by the same boards (FY97 and FY98) that were referenced in the court settlement.
4. The Board granted relief to the individual in the case referenced by the applicant (AR2000039358) because that individual was first considered for promotion to Colonel by the FY98 board; one of the two boards involved in the U.S. District Court settlement.
5. Further, the Board specifically finds the instructions and procedures used by the subject promotion board are not inherently unconstitutional. The instructions used in the board are consistent with merit-based principles that govern the selection of officers for promotion and were race and gender neutral. To the extent that race and gender may have been considered, the instructions were narrowly tailored to further the compelling Government interest of remedying actual past discrimination.
6. 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
_JNS___ ___BJE __ ___JED _ DENY APPLICATION
| CASE ID | AR2001056948 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020214 |
| TYPE OF DISCHARGE | NA |
| DATE OF DISCHARGE | NA |
| DISCHARGE AUTHORITY | NA |
| DISCHARGE REASON | NA |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 131.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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