MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 November 2002
         DOCKET NUMBER: AR2002068526

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry, 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)

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APPLICANT REQUESTS: That his records be considered by a special selection board (SSB) for promotion to colonel in accordance with Title 10, U. S. Code, section 628(b)(1).

APPLICANT STATES: That his consideration for promotion was unfair and demonstrated discrimination. Equal opportunity was not demonstrated when looking at the overall Medical Service Corps (MSC) Fiscal Year 2001 (FY01) Promotion List for colonel. A close look at the 70-series Medical Functional Area, that makes up 58 percent of the entire list, shows discrimination of Black/Not Hispanic officers. Indicators of discrimination are present; that is, the identical type of discrimination the selection board was instructed to be alert to in the Selection Board Instructions.

Thirteen females were considered (14 percent of the population). Five were selected (28 percent of the selected population). Equal opportunity was demonstrated.

One American Indian was considered (1 percent of the population). His selection equated to 6 percent of the 70-series selected population. Equal opportunity was demonstrated.

The ten Black/Not Hispanic officers considered represented 11 percent of the considered population. The one Black/Not Hispanic officer selected was only 6 percent of the selected population and 1 percent of the considered population. Equal opportunity was not demonstrated.

The applicant states that the demonstrated discrimination against Black/Not Hispanic officers was even more detrimental when the leadership of the MSC is considered. For many years the leadership of the Corps has come from the 70-series Medical Functional Area. Since 1947, the Chief of the Medical Service Corps (a brigadier general) has been a 70-series officer. By selecting only one Black/Not Hispanic 70-series officer out of the considered population of 90 70-series officers, the system institutionally ensured that Black/Not Hispanic officers do not participate in the MSC leadership in the future.

The applicant feels that, in his particular case, discrimination was demonstrated in the fact that of the four 70-series officers considered who had completed the Senior Service College, he, the one Black/Not Hispanic officer of the four, was the only one that was not selected.

In addition, the selection goal for the 70A area of concentration (AOC) was three. The board selected two officers from this AOC. Both were White/Not Hispanic. Of the considered officers, nine were above the primary zone and four were in

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the primary zone. He (the applicant) was the only Black/Not Hispanic of the 70A AOC. He was one of the two 70A AOC officers that had completed the Senior Service College.

As supporting evidence, the applicant provides a 3 December 2001 memorandum to the U. S. Total Army Personnel Command (PERSCOM), subject: Request for Special Selection Board. He also provides an extract, containing paragraphs 5 and 8, from the Secretary of the Army Selection Board Instructions.

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

He was commissioned a second lieutenant in January 1979. He was ordered to active duty in May 1981 in the MSC.

Although the applicant's early Officer Evaluation Reports (OERs) showed some problems (one OER while a second lieutenant contained two "2" ratings in two areas of professional competence; one OER while a first lieutenant contained two "2" ratings in two areas of professional competence; and one OER while a captain showed he was rated as below center of mass by his senior rater), his later OERs and especially those received while a lieutenant colonel were commendable.

The applicant was promoted to lieutenant colonel on 1 August 1997.

The applicant's OER (version on DA Form 67-8) for the period ending 30 September 1997 contained rater comments that he was the finest the MSC had to offer and senior rater comments that he should be selected immediately for battalion command in preparation for him to serve in positions of extreme responsibility.

The applicant's OER (version on DA Form 67-9) for the period ending 17 March 1998 contained rater comments that he should be promoted "now" to full colonel and senior rater comments that he had limitless potential and was a future general officer. His senior rater (a brigadier general) gave him a center of mass rating.

The applicant's OER for the period ending 17 March 1999 contained rater comments that he should be selected for senior service school and senior rater comments that he had great long-term potential. His senior rater (a major general) gave him a center of mass rating.

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The applicant's OER for the period ending 17 March 2000 contained rater comments that he had a future for Chief, MSC and general officer potential and senior rater comments that he had many attributes desired in a general officer. His senior rater (a major general) gave him an above center of mass rating.
The applicant's OER for the period ending 17 March 2001 contained rater comments that he had limitless potential and senior rater comments that he should be promoted "now" and be selected for command. His senior rater (a brigadier general) gave him an above center of mass rating.

The applicant's Officer Record Brief shows he had, among others, assignments as a company commander, plans and training officer, battalion executive officer, deputy chief of staff, deputy commander for administration, and chief of staff/deputy commander for administration. He completed the Command and General Staff College, the Combined Arms and Services Staff School, and the Air War College.

The FY01 colonel, MSC selection board convened on 10 July 2001. The applicant was considered but not selected for promotion.

The FY02 colonel, MSC selection board convened on 9 July 2002. The applicant was considered but not selected for promotion.

On 3 December 2001, the applicant submitted a request to PERSCOM for promotion reconsideration in accordance with Title 10, U. S. Code, section 628(b)(1). On 24 January 2002, PERSCOM informed him that promotion reconsideration was authorized under Title 10, U. S. Code and approved when records contained a material error when they were considered by a promotion selection board. Since the applicant did not state that there was a specific material error in his promotion file, PERSCOM could not address issues of equal opportunity goals not being met. In the absence of a material error in his promotion file, his request for promotion reconsideration had to be denied.

Paragraph 5 of the provided extract from the FY01 colonel, MSC, Secretary of the Army Selection Board Instructions contains instructions pertaining to career field and skill selection requirements and goals. It stated that the maximum number of MSC officers to be recommended for promotion was 30. Of that number, a maximum of 18 could be selected from the 70-series Medical Functional Area. Of that 18, AOC 70A had a goal of 3 promotions.

Paragraph 8 of the Selection Board Instructions contained equal opportunity instructions. Paragraph 8a stated in part, "To the extent that each Board demonstrates that race, ethnic background, and gender are not impediments to selection for school, command, and promotion, our soldiers will have a clear perception of equal opportunity in the selection process."

Paragraph 8b of the Selection Board Instructions advised the board members to be alert to the possibility of past discrimination. Indicators of discrimination could include disproportionately lower evaluation reports, assignments of lesser importance or responsibility, or a lack of opportunity to attend career-building military schools. Those factors were to be taken into consideration in assessing the degree to which an officer's record, as a whole, was an accurate reflection, free of bias, of that officer's performance and potential. The paragraph ended, "The foregoing guidance shall not be interpreted as requiring or authorizing you to extend any preference of any sort to any officer or group of officers solely on the basis of race, ethnicity, or gender."

Title 10, U. S. Code, section 628(b)(1) states that, if the Secretary concerned determines, in the case of a person considered but not selected for promotion by a promotion board, that there was material unfairness with respect to that person, the Secretary may convene an SSB to determine whether that person should be recommended for promotion. In order to determine that there was material unfairness, the Secretary must determine that (A) the action of the promotion board that 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.

Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system. Paragraph 7-3 provides that an officer will not be considered for promotion by an SSB when an administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brier or Official Military Personnel File. A material error is defined as being of such a nature that, in the judgment of the reviewing official (or body), had it been corrected at the time the individual was considered by the board that failed to recommend him or her for promotion, it would have resulted in a reasonable chance that the individual would have been selected for promotion.

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 Board recognizes that the applicant was non-selected for promotion to colonel when it appeared he had a competitive record. However, that in and of itself is not prima facie evidence of discrimination.

2. The instructions to the promotion board advised the members to be alert to the possibility of past discrimination. Indicators of discrimination could include disproportionately lower evaluation reports, assignments of lesser importance or responsibility, or a lack of opportunity to attend career-building military schools.

3. The applicant’s records, as evidenced by his OER history, do not appear to reflect that he was the victim of past discrimination. Aside from a few problems when he was a lieutenant and one below center of mass rating as a captain (not uncommon problems in the career of any officer), his OERs were commendable. In fact, his OERs received as a lieutenant colonel were superbly commendable. So, there was no evidence of past discrimination there.

4. The applicant's records, as evidenced by his Officer Record Brief, show he had responsible and demanding assignments to include company commander, plans and training officer, battalion executive officer, deputy chief of staff, deputy commander for administration, and chief of staff/deputy commander for administration. He completed the career-building military schools to include the Command and General Staff College, the Combined Arms and Services Staff School, and the Air War College. So, there was no evidence of past discrimination there.

5. In accordance with Title 10, U. S. Code, section 628(b)(1), the applicant could be considered by an SSB if there was material unfairness with respect to him in his original consideration for promotion. However, it must first be determined that the action of the promotion board that considered him was contrary to law or involved material error of fact or material administrative error or the board did not have before it for its consideration material information.

6. The applicant does not contend that there was a material error of fact or material administrative error or that the promotion board did not have before it for its consideration material information. The Board presumes that the applicant's contention then relates to his belief the promotion board acted contrary to law.

7. Again, the fact the applicant was non-selected for promotion is not evidence of discrimination. The functional area promotion goals were just that, goals. In addition, the board members were instructed that the equal opportunity guidance was not to be interpreted as requiring the extension of any preference to any officer or group of officers solely on the basis of race, ethnicity, or gender. They were only instructed to be alert to the possibility of past discrimination. As noted above, there appeared to be nothing in the applicant's records to show he had been the victim of past discrimination. Therefore, there is no evidence that the action of the FY01 promotion board was contrary to law.

8. In view of the above, the applicant does not appear to have met the statutory criteria for promotion reconsideration.

9. 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

_ _SAC _ __RWA_ ___HOF__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068526
SUFFIX
RECON
DATE BOARDED	2002/11/26
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.11
2.
3.
4.
5.
6.