| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | |
| Ms. Regan K. Smith | Member | |
| Mr. Donald P. Hupman, Jr. | Member |
APPLICANT REQUESTS: That he be reconsidered for promotion to lieutenant colonel by the fiscal year 1998 (FY 98) and FY 99 lieutenant colonel promotion selection boards.
APPLICANT STATES: In effect, that it was the equal opportunity instructions, which the U. S. Court of Federal Claims declared in Christian versus The United States to be unconstitutional, given to the FY 98 and FY 99 boards that caused him to be nonselected. In 1999, the District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two Judge Advocate General’s Corps (JAGC) lieutenant colonels who claimed that the affirmative action portion of the instructions used by the colonel’s board violated their equal protection and due process rights. The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel. Based on this case, the Board held that as a matter of equity it would be in the interest of justice to grant the same relief to two later applicants. He cites the applicable cases. He submits that declining to provide the same relief in his case would be an arbitrary and capricious act.
EVIDENCE OF RECORD: The applicant's military records show:
After having had prior Army National Guard service, he was appointed a first lieutenant in the U. S. Army Reserve and entered active duty on 1 October 1986 in the JAGC. He was promoted to major on 1 April 1994. He was first considered and nonselected for promotion to lieutenant colonel by the FY 98 JAGC lieutenant colonel promotion selection board and considered and nonselected by subsequent promotion boards.
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 Christian v. United States (a case concerning an officer selected by a Selective Early Retirement Board (SERB) for early retirement), that the equal opportunity instructions used by the SERB were unconstitutional. On 8 February 2001, that Court ruled that the results of that board are void. However, the ruling is not final and not yet subject to appeal by the Government; and the ruling is controlling only in that litigation.
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. In some previous cases (and in the two cases cited by the applicant), the Board granted the applicants promotion reconsideration based upon the 1999 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.
3. Although a Senior 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
__rvo___ __rks___ __dph___ DENY APPLICATION
| CASE ID | AR2001061164 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20011016 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 131.10 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2001 | 2001059781C070421
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. EVIDENCE OF RECORD : The applicant's military records show: The applicant is a Medical Service Corps lieutenant colonel who was non-selected for promotion to colonel so he was not considered by the same boards that considered the individuals in the U. S. District Court case.
ARMY | BCMR | CY2001 | 2001052780C070420
He was first considered for promotion to LTC by the FY 95 LTC JAGC Promotion Selection Board. The Board notes that the applicant had a group of OERs between October 1985 and January 1988 where he was rated as above center of mass. Without evidence to show otherwise, the Board concludes that the officers who were recommended for promotion to LTC, JAGC were, in the promotion boards’ considered opinion, the best qualified.
ARMY | BCMR | CY2001 | 2001063912C070421
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. It does not appear to the Board that there was a material error in his records as they were considered by the FY 99 promotion board. That all of the Department of the Army records related to this case be corrected by submitting the applicant’s records to a duly...
ARMY | BCMR | CY2004 | 20040010394C070208
He learned of the actions directed by the Court, and specifically the Court determination that the instructions used were unconstitutional, in November 2004 when a friend electronically mailed a Washington Post article that discussed the issues involved. In accordance with paragraph 5 of this message, applications for special selection boards received within one year of the date of the message "may be based on original board results that were released within 6 years of the application." It...
ARMY | BCMR | CY2006 | 20060009679C070205
The applicant requests, in effect, that his records be corrected to show he was promoted to Major, O-4 when he was on active duty. Title 10, U. S. Code, section 628 states the Secretary of a military department may correct a person's military records in accordance with a recommendation by a special selection board. In accordance with paragraph 5 of this message, applications for special selection boards received within one year of the date of the message "may be based on original board...
ARMY | BCMR | CY2010 | 20100000288
The applicant requests consideration for promotion to colonel by a special selection board (SSB) under the Fiscal Year (FY) 1998 (98) Colonel, Army, Promotion Board. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. The advisory opinion from the Deputy Chief, Promotions Branch, HRC, merely states the obvious; the applicant was eligible for an SSB under Title 10,...
ARMY | BCMR | CY2001 | 2001052779C070420
The applicant states, in effect, error of improper instructions to the promotion boards and an illegible microfiche presented to the boards seriously prejudiced him, resulting in material unfairness and denied rights guaranteed by the Fifth Amendment to the U. S. Constitution. He further states that the Army Board for Correction of Military Records (ABCMR) should grant relief in the form of reconsideration for promotion to COL by SSB’s, and rewriting paragraph G-4(3) in the instructions...
ARMY | BCMR | CY2001 | 2001056948C070420
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...
ARMY | BCMR | CY2010 | 20100028320
With respect to his promotion, the applicant states in a letter addressed to the Secretary of the Army: * Reserve officers were discriminated against since it was the promotion boards' prior determination (a quota system) that all promotions would go to Regular Army (RA) officers and minorities * his non-selection for promotion to COL is a grave injustice * promotion boards were in violation of equal protection and due process rights of persons considered for promotion under the Fifth...
ARMY | BCMR | CY2005 | 20050009225C070206
The applicant was considered but not selected for promotion. The Officer Policy Division, Office of the Deputy Chief of Staff, G-1 noted that the EO language in the FY02 LTC Army promotion selection board was not ruled unconstitutional. Prior to 2000, selection boards were required to conduct a review of files for the effects of past discrimination in any case in which the selection rate for a minority or gender group was less than the selection rate for all officers in the promotions zone...