RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            7 July 2005
      DOCKET NUMBER:   AR20040001657


      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 L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the records of the applicant be reconsidered for
promotion to Colonel (COL) by a special selection board (SSB) under the
criteria of the Fiscal Year 2001 and 2002 (FY01 and FY02) COL, Army Medical
Department (AMEDD) promotion selection boards.

2.  Counsel states that the absence of Army Acquisition Corps (AAC)-related
instructions in the memorandums of instruction (MOIs) to the two boards
entitles the applicant to reconsideration based on corrected instructions.

3.  Counsel states that the Defense Acquisition Workforce Improvement Act
(DAWIA) of 1990 created an Acquisition Corps to attract and retain top
officers in a new and nontraditional work assignment.  While AMEDD was slow
and halting in implementing DAWIA, a number of AMEDD officers were
designated as AAC officers in time, to include the applicant.  Mindful of
the congressional objective, other parts of the Army took steps to ensure
that suitable instructions were given to promotion selection boards.
Similar instructions, however, were not given to boards considering AMEDD
officers.

4.  Counsel states that the applicant requested an SSB while still on
active duty; however, his request was denied.  Although the denial letter
did not provide an explanation, an "information paper" was provided which
counsel presumes provided the rationale for the denial.  The "discussion"
in the "information paper" was incorrect or irrelevant.  The fact the
applicant was not "assessed into the Acquisition Corps" (whatever
"assessed" means) is irrelevant.  The applicant satisfies all of the
requirements for membership in the AAC.  The Army cannot go behind a
certification of AAC membership and deny him the benefits of AAC membership
on some other theory, such as that he is not career-managed by the
Acquisition Management Branch (AMB).  The fact is that a Medical Service
Corps (MS) officer can also be a member of the AAC.

5.  Counsel does not contend that the applicant was entitled to be
promoted, only that he had a right to consideration that was fair in itself
and consistent with that afforded to other AAC officers.  Congress
recognized that officers serving in the various Acquisition Corps might be
at a disadvantage when it came to promotions and so enacted section 1731 of
Title 10, U. S. Code (USC):

      [section 1731(b)] The Secretary of Defense shall ensure that the
qualifications of commissioned officers selected for an Acquisition Corps
are such that these officers are expected, as a group, to be promoted at a
rate not less than the rate for all line (or the equivalent) officers of
the same armed force (both in the zone and below the zone) in the same
grade.

6.  Counsel states that, regardless of how non-AMEDD promotion board MOIs
read, the boards that considered the applicant should have had an AAC
paragraph in their MOIs.  The fact that special instructions were given to
non-AMEDD promotion boards compels relief for the applicant.  This is
because the mischief Congress intended to remedy in enacting DAWIA is the
same whether or not an AAC officer is, for example, career-managed by AMB.
There is no rational basis for determining that AAC officers in, for
example, the Signal Corps would have the benefit of a special AAC paragraph
in their promotion board's MOI but those in AMEDD would not.

7.  Counsel provides the documents listed at Exhibits as Tabs 1 through 22.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned on 13 May 1978.  He was ordered to
active duty around January 1981 as a Field Artillery officer.  He requested
branch transfer to the Medical Service Corps around December 1983 and on
              9 December 1983 was appointed a First Lieutenant in the
Medical Service Corps. On 1 March 1997, he was promoted to Lieutenant
Colonel (LTC).

2.  On 16 November 1993, the Director, Acquisition Career Management; the
Deputy Chief of Staff for Personnel; and The Surgeon General signed a
Memorandum of Understanding (MOU) for establishment and operation of a
system to meet the requirements of the DAWIA within the AAC for unique
AMEDD personnel specialties.

3.  By memorandum for record (MFR) dated 24 January 1994, the AMEDD
Acquisition Specialties Process Action Team addressed concerns about the
applicability of Title 10, USC, section 1731(b) to AMEDD officers.  The MFR
noted that the Acquisition Proponency Office interpreted the section to
assure that AMEDD officers would compete against AMEDD officers when
measuring promotion-rate compliance.  Since AMEDD officers compete with
like AMEDD Corps officers for promotion, their promotion rates, once in the
AAC, will be measured against the same group of AMEDD Corps officers with
whom they currently compete.

4.  By memorandum dated 31 January 1994, the Chief, Health Services
Division (HSD), U. S. Total Army Personnel Command (PERSCOM) noted that
Officer Personnel Management Division, PERSCOM assumed responsibility for
the creation of an AMEDD military acquisition management office with the
MOU signed on 16 November 1993.  It noted that HSD and the Functional Area
Management Division (FAMD) agreed that HSD should manage the AMEDD portion
of military acquisition specialty management.  It noted that those officers
would also be utilized in AMEDD positions outside those designated for
Acquisition Corps, necessitating continuing branch qualification.

5.  The 31 January 1994 memorandum also noted that the Acquisition
Proponency Office advised that the promotion rates of AAC officers are
measured against the rates of other officers within whom they normally
compete when they are not in the AAC.  Since AMEDD officers compete with
officers of their AMEDD branch, their promotion rates, once affiliated with
the AAC, would be measured against the rate of their parent AMEDD branch.

6.  An MFR dated 13 February 1994 from the Chief, HSD noted an AMEDD
acquisition specialty working group met on 8 February 1994 to discuss the
status of the implementation of AMEDD specialties into the Acquisition
Corps management.  It noted that AMEDD officers with the Acquisition Corps
additional skill identifier (ASI) of 4Z or 4M would be managed by a
dedicated cell of three individuals.  The group agreed that an estimate of
the size of the AMEDD acquisition participation was required and agreed to
submit 346 positions for coding as AMEDD acquisition.  Of the 346
positions, 135 would be classified as critical (LTC/COL).  The population
pool reflected some 49 different specialties.

7.  The 13 February 1994 MFR noted that the promotion of AMEDD acquisition
officers would be at the same rate as their parent branch.  Due to the low
density of some of the 49 different specialties, it was not feasible to
establish floors by ASI.  Promotion rates would be viewed as an average
over a few years and not per board.

8.  By memorandum dated 5 October 1998, the Chief, HSD certified to the
Director of Acquisition Career Management that a total of 25 AMEDD LTCs or
COLs met the criteria for level II or III certification in various
Acquisition position categories.  The applicant was listed as one of 19 LTC
or Major (promotable) officers in this category.

9.  By memorandum dated 2 November 1998, the applicant was informed that he
was accepted into the AAC.  He had a specialty of 67A (Health Care
Administration) and a functional area of concentration (AOC) of 70D (Health
Services Systems Management).  His Officer Record Brief dated 20 June 2001
showed he had an ASI of 4Z.

10.  The applicant was in the primary zone of consideration for promotion
to COL with the FY01 promotion board that convened around July 2001.  The
Selection Board Instructions, dated 18 June 2001, paragraph 5b (Medical
Service Corps), subparagraph (2) noted that selection goals were
established for certain AOCs.  The board should strive to meet that number,
but was not required to select any officer in that specialty.  The maximum
number of Medical Service Corps (comprised of 23 distinct AOCs) officers to
be recommended was 30.  The applicant's AOC of 70D67 had a goal of 1 but
there was no requirement to select any.  Six AOCs had a listed requirement
of at least 1.  The instructions did not contain any specific instructions
regarding the AAC.

11.  The FY01 Army Competitive Category COL promotion board convened around
July 2001.  AOC 51 (Army Acquisition Corps) had a minimum selection
requirement of 37.  That board's instructions contained the following
guidance in paragraph 8g:

      Army Acquisition Corps (AAC) Selection Objectives/Goals.  Law
dictates that the qualifications of officers selected for the AAC are such
that those officers are expected, as a group, to be promoted at a rate not
less than the rate for all officers selected by the board.

      (1)  To attract and retain a sufficient number of top quality AAC
officers, the boards will strive to select AAC officers at a rate not less
than the selection rate for all considered officers from the same
competitive category.  A comparison between the selection rate for AAC
officers, OS (Operational Support) career field, and the selection rate
aggregate of the four competitive categories (i.e., Operations, Operational
Support, Information Operations, and Institutional Support) will also be
included in your statistical summary enclosure to the board after action
review.

      (2)  The board will include a summary of functional area selection
rates by career field in the statistical summary enclosure to the board
after-action report.  Should the board fail to meet the overall selection
goal and/or career field selection goal, the board president will include
the reasons in the board report.

12.  The applicant was not selected for promotion by the FY01 AMEDD COL
promotion board.  He was not selected for promotion, while above the zone,
by the FY02 AMEDD COL promotion board.

13.  On 25 April 2002, the applicant requested promotion reconsideration
under the FY01 criteria based on the following significant material errors:

      (a)  the board acted contrary to law because the board instructions
dated 18 June 2001 failed to include information necessary to comply with
the DAWIA of 1990;

      (b)  the board did not have before them material information to
comply with Army Regulation 600-3, paragraph 5-3 and therefore failed to
comply with DAWIA, Title 10, USC sections 1723(a), 1731b), and 1733(a);

      (c)  the board instructions improperly failed to include a
requirement for promotion of an AOC 70D67 and Certified Acquisition
Professional (CP) Level III, AAC-qualified officer; and

      (d)  the board instructions contained misleading and erroneous
instructions concerning equal opportunity.

14.  An information paper dated 6 May 2002 was prepared in response to the
applicant's request for promotion reconsideration.  The information paper
noted that MS officers could be assessed into the AAC if they so desired.
MS officers who are assessed into the AAC are redesignated FA51, OS career
field, managed by the AMB, and compete for promotion against other OS
career field FA51 officers.  Officers who remain with AMEDD continue to
have MS as their control branch and compete for promotion against other
AMEDD officers.  The applicant had not been assessed into the Acquisition
Corps even though he has an Acquisition Corps membership certificate.  The
AMEDD MOI was not required to address the DAWIA for selection of AMEDD
officers with an Acquisition identifier because they had not been assessed
in the Acquisition Corps to be managed by the AMB.  Holding an ASI of 4Z
did not guarantee promotion.  The MOI did not have any erroneous
instructions and was found not legally objectionable by both the Office of
The Judge Advocate General (OTJAG) and the Office of The General Counsel.
The applicant's request for an SSB was denied.

15.  The applicant was released from active duty on 31 August 2003 and
placed on the retired list on 1 September 2003.

16.  In the processing of this case, an advisory opinion was obtained from
OTJAG.  OTJAG noted that Title 10, USC, section 1731(b) states that the
Secretary of Defense shall ensure that all qualifications of commissioned
officers selected for the Acquisition Corps are such that those officers
are expected, as a group, to be promoted at a rate not less than the rate
for all line (or the equivalent) officers of the same armed force (both in
the zone and below the zone) in the same grade.  The legislative history of
this section indicates that the Secretary of Defense is required "to ensure
that military personnel who are selected for the Acquisition Corps are
competitive in terms of promotions with their peers outside the acquisition
workforce."  OTJAG noted that the statute does not contain a reporting
requirement and that Title 10, USC, section 1371 does not require that
information concerning promotions of AAC officers be included in the
instructions to the board.

17.  OTJAG also noted that Department of Defense Instruction (DODI) 5000.55
(Reporting Management Information on Department of Defense Military and
Civilian Acquisition Personnel and Positions), paragraph 4.4 requires that
military departments report relative promotion rate information for
military personnel in their Acquisition Corps compared to the general line
officer community promotions rates.  Although not defined in the
regulation, DD Form 2603 (Officer Promotion Rate Comparisons) defines the
comparison pool as Army Human Resources Command Officer Personnel
Management Directorate (OPMD)- managed officers.  AMEDD personnel are not
managed by OPMD.  Accordingly, OTJAG found that the term "or equivalent"
officers refers to officers managed by OPMD, otherwise known as the Army
Competitive Category (ACC), based on DODI 5000.55.  As such, the selection
rate of in and below the zone AMEDD officers with an AAC certification
would be compared to the selection rate for in and below the zone ACC
officers, as opposed to fellow AMEDD officers.  OTJAG suggested, however,
that a clarification be obtained from the Office of the Secretary of
Defense (OSD) on whether a comparison of the AAC AMEDD population to the
ACC complies with their interpretation of the statute and DODI 5000.55.

18.  OTJAG noted that, although not required by law, the FY01 and FY02 COL,
ACC promotion selection boards contained instructions to the boards to
"strive to select AAC officers at a rate not less than the selection rate
for all considered officers for the same competitive category."  The
"strive" language appears to create a goal for the board and may have
impacted on the boards' voting decisions.  According to the FY01 and FY02
COL, ACC promotion selection boards AAC statistics, the AAC exceeded the
promotion rate for all officers in the ACC for both in and below the zone
(FY01 in the zone:  AAC officers 58 percent and competitive categories
aggregate 53.9 percent; FY01 below the zone:  AAC officers 3.8 percent and
competitive categories aggregate 2.8 percent).

19.  OTJAG noted that, although neither the FY01 nor the FY02 COL, AMEDD
promotion selection boards contained the AAC language, Title 10, USC,
section 1731 is concerned about the comparison rate for officers in and
below the zone, not officers above the zone.  The applicant was above the
zone at the FY02 COL AMEDD promotion selection board.  The lack of AAC
information does not constitute a material error of fact because the
Secretary of the Army was not required to direct the board to consider the
information nor was he required to have the board conduct a comparison of
Acquisition Corps-qualified AMEDD officers against the ACC or other AMEDD
officers.

20.  OTJAG recommended, if the ABCMR directed an SSB for the applicant,
that the FY01 COL, AMEDD promotion selection board instruction be modified
to add language concerning the AAC.

21.  On 27 May 2005, the Assistant Director, Officer Personnel Policy,
Deputy Under Secretary of Defense (Military Personnel Policy), OSD
responded to OTJAG's suggestion for clarification.  That individual stated
that his interpretation was that AMEDD is not a line category; therefore,
acquisition-certified officers competing in non-line promotion boards are
not required by law or policy to be selected at a rate comparable to the
overall board average.  The Service Secretary is not required to provide
Acquisition instructions on non-line boards and, unlike line boards,
Acquisition statistics are not required in processing "staff" boards.

22.  A copy of the advisory opinion and the 27 May 2005 OSD response to
OTJAG's suggestion for clarification were provided to the applicant for
comment or rebuttal.

23.  The applicant, through counsel, responded that the advisory opinion
supported a grant of relief in at least three respects.  First, it
implicitly recognizes that AMEDD officers who have Acquisition Corps
certification are to be treated as AAC officers.  Second, it confirms that
the baseline against which AMEDD AAC promotions are to be measured is ACC
promotions, rather than overall AMEDD promotions.  (The fact that AMEDD and
ACC promotion boards are not held at the same time is immaterial, as the
necessary comparison can be made between promotion rates at AAC and ACC
promotion boards that are closest in time.)  Third, it indicates that the
use of the "strive" clause in the FY01 and FY02 ACC instructions may have
impacted on board voting decisions.

24.  The applicant, through counsel, noted that the advisory opinion argued
that SSB relief should not be granted in respect of the FY02 board because
he was above the zone at that board and Title 10, USC, section 1731 is
concerned only with the comparison rate for officers in and below the zone.
 They respectfully disagree.  The special AAC instructions were not
confined to in and below the zone officers.  There is no basis for denying
parity to AMEDD and non-AMEDD AAC officers.  The same instructions should
have been applied across the board, and since above the zone non-AMEDD AAC
officers had the advantage of the "strive" clause before the FY02 board,
there is no reason for AMEDD AAC officers not to have been afforded the
same advantage before their FY02 board.  As a result, the relief should
include an SSB in respect of the FY02 board in the event the FY01 SSB fails
to recommend him for in the zone promotion.

25.  The applicant, through counsel, stated that the OSD response to the
advisory opinion was not entitled to deference.  If there is an overall OSD
policy at issue, it should come from a policy-level official and should
reflect the kind of formality associated with expressions of official
policy.  Moreover, even if the responses in the email were correct, that
would not deprive the Secretary of the Army of discretion to provide AAC
instructions to non-line promotion boards such as AMEDD boards.  Thus, the
ABCMR can grant the SSB relief sought without violating any Department of
Defense policy, much less any statute.

26.  Army Regulation 310-25 (Dictionary of United States Army Terms)
defines "line officer" as "officer belonging to a combatant branch of the
Army, officer of the line."

27.  Department of the Army Pamphlet 600-4 (AMEDD Officer Development and
Career Management), paragraph 2-15f states that some officers from the
various AMEDD Corps are selected for assignment to the AAC.  They will
receive an initial designation of ASI 4M.  Upon meeting all certification
requirements, officers are awarded ASI 4Z, certified AAC officer.  Senior
AMEDD officers assigned to the AAC are responsible for materiel acquisition
matters pertaining to the AMEDD and serve at the highest levels of the
materiel acquisition management profession in the AMEDD and the Army.

28.  In phone conversations with numerous personnel in the Army (Office of
The Surgeon General and the U. S. Army Human Resources Command, formerly
PERSCOM) and in OSD, the Board analyst was informed that the Army does not
report AMEDD Acquisition-certified promotion comparison rates to OSD and
OSD does not have a policy that specifically addresses requiring such rates
be reported.

DISCUSSION AND CONCLUSIONS:

1.  The DAWIA of 1990 created an Acquisition Corps to attract and retain
top officers in a new and nontraditional work assignment.  Section 1731(b)
of Title 10, USC directed that the Secretary of Defense shall ensure that
the qualifications of commissioned officers selected for an Acquisition
Corps are such that these officers are expected, as a group, to be promoted
at a rate not less than the rate for all line (or the equivalent) officers
of the same armed force (both in the zone and below the zone) in the same
grade.
2.  Counsel contended that, because the FY01 ACC COL promotion board was
given special instructions concerning selection of AAC officers but the
FY01 AMEDD COL promotion board was not, the applicant was disadvantaged.
He contended that there is no rational basis for determining that AAC
officers in, for example, the Signal Corps would have the benefit of a
special AAC paragraph in their promotion board's MOI but those in AMEDD
would not.

3.  A flaw in counsel's reasoning is that there are no AAC officers in the
Signal Corps.  Officers in the Army Competitive Category who are AAC
officers are in the Army Acquisition Corps, not in the Signal Corps, not in
the Quartermaster Corps, not in the Medical Corps, and not in the Medical
Service Corps.  If an AAC officer who had formerly been a Signal Corps
officer no longer desires retention in the AAC, he is "reassessed" into the
Signal Corps.

4.  The dilemma with AMEDD officers "assigned" to or "affiliated" with the
AAC is that they retain their AMEDD specialty.  It was noted in the 31
January 1994 HSD memorandum that HSD would manage the AMEDD portion of
military acquisition specialty management.  It was also noted that those
officers would also be utilized in AMEDD positions outside those designated
for Acquisition Corps, necessitating continuing branch qualification.
However, it appears the applicant had the option to be assessed into the
AAC and to compete against other ACC officers. He opted to remain in the
AMEDD and complete against other AMEDD officers.

5.  It is also noted that the 31 January 1994 memorandum indicated that the
Acquisition Proponency Office advised that the promotion rates of AAC
officers are measured against the rates of other officers within whom they
normally compete when they are not in the AAC.  The memorandum went on to
state that, since AMEDD officers compete with officers of their AMEDD
branch, their promotion rates, once affiliated with the AAC, would be
measured against the rate of their parent AMEDD branch.  The 24 January
1994 MFR stated the same. This is contrary to OTJAG's interpretation that
the selection rate of in and below the zone AMEDD officers with an AAC
certification would be compared to the selection rate for in and below the
zone ACC officers, as opposed to fellow AMEDD officers.

6.  OTJAG recommended that OSD's interpretation of the statute and of DODI
5000.55 be obtained.  Counsel contended that the individual who provided
the final response to the request for OSD's interpretation was not a policy
person.  That individual's interpretation was that AMEDD is not a line
category; therefore, Acquisition-certified officers competing in non-line
promotion boards are not required by law or policy to be selected at a rate
comparable to the overall board average.  However, numerous calls by the
Board analyst to various offices in OSD failed to find anyone who had a
more definitive answer.  No one in OSD appeared to be concerned that the
promotion rates of AMEDD Acquisition-qualified officers was not being
reported to OSD.  That fact tends to substantiate OSD's unofficial
interpretation that OSD is not interpreting the statute or DODI 5000.55 to
require the promotion rate of AMEDD Acquisition-qualified officers to be
compared to either ACC officers or to other AMEDD officers.

7.  Counsel contended that Congress recognized that officers serving in the
various Acquisition Corps might be at a disadvantage when it came to
promotions and so enacted section 1731 of Title 10, USC.  However, the
evidence (as shown in OTJAG's advisory opinion) is that the Army is
following Congress's desires and assigning top officers to the AAC.  For
the FY01 COL ACC promotion board, AAC officers exceeded the promotion rate
of the competitive categories aggregate by 58 percent compared to 53.9
percent and, below the zone, by 3.8 percent compared to the competitive
categories aggregate of 2.8 percent.

8.  It was only speculation on the part of OTJAG to surmise that the
"strive" language appeared to have created a goal for the ACC promotion
boards that could have impacted on the boards' voting decisions.  It was
noted that the FY01 AMEDD COL promotion board had a goal of 1 in the
applicant's AOC; however, he was not selected for promotion in his AOC.  It
is not known if anyone was selected for promotion in that AOC.  A goal is
just a goal, not a requirement to select.

9.  OTJAG acknowledged that there was no error of fact because the
Secretary of the Army was not required to direct the FY01 AMEDD COL
promotion board to consider the AAC information nor was he required to have
the board conduct a comparison of Acquisition Corps-certified AMEDD
officers against the ACC or other AMEDD officers.

10.  Given the reasons above, there is insufficient evidence to determine
that the applicant's promotion chances were hurt by not having the AMEDD
COL promotion board MOIs contain guidance concerning Acquisition-qualified
officers. Just as importantly, there is insufficient information to
determine whether Congress intended to include Acquisition-qualified AMEDD
officers when it enacted section 1731 of Title 10, USC or, more
importantly, whether OSD intended to require the military departments to
report relative promotion rate information for AMEDD Acquisition-certified
officers.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __ena___  __cak___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            __Melvin H. Meyer_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001657                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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