RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 March 2005
      DOCKET NUMBER:   AR20040003960


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathan K. Rost              |     |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:

1.  The applicant requests, in effect, promotion reconsideration to
lieutenant colonel (LTC).

2.  The applicant states that the 1992 through 1999 promotion boards were
given improper and unconstitutional instructions requiring quotas for
minority promotions.  This denied him an equal opportunity for impartial
consideration for promotion.

3.  The applicant provides the decision of the United States Court of
Federal Claims in Christian v. United States and a letter from the U. S.
Army Human Resources Command (USAHRC) to him dated 7 January 2004.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel makes no additional request.

2.  Counsel apparently responded to USAHRC's 7 January 2004 letter.  His
response is noted below.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the Regular Army
and entered active duty on 28 May 1980.  He was promoted to major effective
   1 April 1992.

2.  The applicant was considered and not selected for promotion to LTC by
the Fiscal Year 1996 Department of Army LTC Promotion Selection Board.

3.  On 17 October 1996, the applicant requested release from active duty
under the Voluntary Early Retirement Program.  His request was approved on
           25 October 1996.  On 31 January 1997, he was released from
active duty after completing 16 years, 8 months, and 3 days of creditable
active service and placed on the retired list effective 1 February 1997.

4.  The applicant's Officer Evaluation Report (OER) history, beginning with
OERs received as a captain, is as follows (* indicates applicant’s senior
rater (SR) potential block rating):

           OER Period Ending            SR Block Rating

           3 February 1984        1/7/*11/2/0/0/1/0/0
           7 June 1985            *2/3/0/1/1/0/0/0/0
           7 June 1986            26/*21/6/3/0/0/1/0/0
           27 March 1987          2/3/*4/1/0/0/0/0/0/0
           7 February 1988        6/*25/6/0/0/0/0/0/0
           10 January 1989        *4/10/1/0/0/0/0/0/0
           10 July 1989                 *18/26/6/0/0/0/0/0/0
           21 May 1990            2/4/*11/1/0/0/0/0/0
           6 April 1991                 *17/16/0/0/0/0/0/1/0
           1 August 1991          1/*1/0/0/0/0/0/0/0
           12 March 1993          *23/13/0/0/0/0/0/0/0
           12 March 1994          2/*4/0/0/0/0/0/0/0
           12 March 1995          *21/4/0/0/0/0/0/0/0
           30 November 1995       *13/0/0/0/0/0/0/0/0
           15 May 1996            *42/3/1/0/0/0/0/0/0

5.  By letter dated 7 January 2004, the Chief, Promotions Branch, USAHRC
advised the applicant that the Deputy Chief of Staff, G-1, had published
guidelines regarding consideration by special selection boards (SSBs).  In
part, the guidance stated that an SSB may be convened in the case of an
officer who was not selected by a promotion selection board and the
Memorandum of Instructions for that promotion selection board contained pre-
September 1999 Equal Opportunity promotion instructions.  The applicant was
advised that the guidance also imposed a time limit on requests for
promotion reconsideration based on the pre-September 1999 Equal Opportunity
promotion instructions.  Specifically, the release date of the results for
the promotion selection board, which considered but did not select the
officer, must be within 6 years from the date that the affected officer
submitted his request for promotion reconsideration to the US Total Army
Personnel Command (currently designated USAHRC).  The release date of the
applicant's board was 14 March 1996, which meant the latest date that he
could have requested reconsideration for that board was 14 March 2002.  A
review of his request revealed that the issues he raised did not fall
within the parameters established by the Deputy Chief of Staff, G-1, for
possible consideration by an SSB.  The applicant was also advised that
after review of his case, he was free to proceed directly to a court of
appropriate jurisdiction.

6.  In his application to this Board, the applicant's counsel apparently
responded to USARHC's letter by stating that the Army conceded that as a
matter of law pre-September 1999 Equal Opportunity instructions imposed on
various selection boards were constitutionally defective.  However, the
Army G-1 had apparently unilaterally imposed a statute of limitations on
constitutionally-based claims
which has no basis in law, much less in equity.  The letter contained
additional erroneous legal advice, telling the applicant that he was "free"
to pursue a federal lawsuit.  Had the applicant gone to the considerable
expense of doing so, the Army would have moved for summary judgment based
upon his failure to first apply to this Board.  As it is, the statute of
limitations for actions against the U. S government is six years from the
date of accrual, which in this case would be no earlier than the
publication of the Christian decision in 2001.  Further, the Board
specifically begins timing of its procedural three-year limitation by
asking when the alleged error or injustice was discovered.  Hence, there
should be no question as to timeliness in this case.

7.  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.
As a result of this decision, section 503 of the National Defense
Authorization Act for FY 2002 enacted Title 10, U. S. Code, section 1558
and amended Title 10, U. S. Code, section 628 to require that members
challenging unfavorable treatment by a selection board to apply to their
Service Secretary for consideration by a special board or a special
selection board.

8.  The Secretary of the Army has directed, and the Department of Defense
has approved, several provisions with respect to the indicated selection
boards.  Until the applicable regulations can be revised to contain
provisions for special boards to reconsider persons selected for
involuntary early retirement, release from active duty, and other purposes,
the Deputy Chief of Staff for Personnel, G-1, Special Review Board is
designated as a special board for individuals in these categories.

9.  Title 10, U. S. Code, section 1558(e)(2) states that the Secretary may
prescribe in the regulations under section 1558(e)(1) the circumstances
under which consideration by a special board may be provided for under this
section, including the following:  (A) the circumstances under which
consideration of a person's case by a special board is contingent upon
application by or for that person; and (B) any time limits applicable to
the filing of the application for such consideration.

10.  Military Personnel (MILPER) message 03-170, issued in May 2003,
outlines the criteria set by the Secretary of the Army under which
consideration by a special board may occur.  These criteria include the
time limits applicable to the
filing of an application.  In accordance with paragraph 5 of this message,
"applications for special boards and special selection boards must be
received by the appropriate agency no later than one year after the
official release date of this message or the original board results were
released, whichever is later."  Applications received more than one year
after release of the message or the date the original board results were
released, whichever is later, will be treated as untimely.  Applications
for special 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.  After one year from the date of the message, applications
based on original board results that were released more than one year
before the date of the message will be treated as untimely, absent
compelling justification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Fiscal Year 1996 LTC promotion
selection board contained a constitutionally improper race and gender-based
goal is not disputed.  The Courts have so ruled.  As a result of the
Court's decision, section 503 of the National Defense Authorization Act for
FY 2002 enacted Title 10, U. S. Code, section 1558 and amended Title 10, U.
S. Code, section 628 to require that members challenging unfavorable
treatment by a selection board apply to their Service Secretary for
consideration by a special board or a special selection board.

2.  Title 10, U. S. Code, section 1558 also allowed the Secretary concerned
to prescribe in the regulations the circumstances under which consideration
by a special board may be provided for under this section, including any
time limits applicable to the filing of the application for such
consideration.  The Army did not unilaterally impose "a statute of
limitations on constitutionally-based claims."

3.  MILPER message 03-170, issued in May 2003, states that "applications
for special boards and special selection boards must be received by the
appropriate agency no later than one year after the official release date
of this message or the original board results were released, whichever is
later."

4.  MILPER message 03-170 then went on to give three situations and how
applications for special boards would be treated in each situation:

      a.  applications received more than one year after release of the
message or the date the original board results were released, whichever is
later, will be treated as untimely;


      b.  applications 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; and


      c.  after one year from the date of the message, applications based on
original board results that were released more than one year before the
date of the message will be treated as untimely, absent compelling
justification.

5.  The applicant's particular situation was not specifically addressed by
MILPER message 03-170 – an application for an SSB received within one year
of the date of the message but original board results were not released
within 6 years of the application, but the implication is that they would
be treated as untimely.

6.  MILPER message 03-170 does not specifically address the applicant's
particular situation; nevertheless, the Board has determined as a matter of
equity that compelling justification is required before deciding that an
application, based on original board results that were released more than 6
years before the message, should be considered by an SSB.  In the
applicant's case, the Board believes there is sufficient compelling
justification to warrant reconsideration by an SSB.  While his OER history
shows that, for the most part, he was rated center of mass, two of his OERs
(both in 1989) show he was rated above center of mass.  He has no below
center of mass ratings.  Even though it was a period of drawdown, the Board
believes his OER history indicates a reasonable confidence that he might
have been selected for promotion absent the Equal Opportunity instructions.

BOARD VOTE:

__rjw___  __jtm___  __jkr___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
submitting his records to a duly constituted special selection board for
reconsideration for promotion to lieutenant colonel under the Fiscal Year
1996 criteria.




            __Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003960                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050315                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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