RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 May 2005
      DOCKET NUMBER:   AR20040004020


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 promotion reconsideration to colonel (COL).

2.  The applicant states, in effect, that the 1992 through 1999 promotion
boards were given improper and unconstitutional instructions requiring
quotas for minority promotions.  He requested a relook board but was denied
because he had missed a deadline.  He was never notified that he was
eligible for a relook, and he submitted his request as soon as he found out
about the process from a friend who worked for the Army.  He submitted a
request for a waiver of the timeline and mailed it by certified mail to the
U. S. Army Human Resources Command (USAHRC) but his request was lost.  He
resubmitted it, and his request was denied.  To deny him a relook would be
unfair.

3.  The applicant provides his original request with confirmation of
delivery; his first denial; his request for waiver with delivery
confirmation; an email dated        1 June 2004; a copy of Military
Personnel (MILPER) message Number 03-170; an email dated 28 May 2004; and a
second denial letter.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant was commissioned and
entered active duty on 7 May 1973.  He was promoted to captain effective 6
June 1977, to major effective 1 November 1984, and to lieutenant colonel
(LTC) effective     1 January 1991.

2.  The applicant was considered and not selected for promotion to COL by
the Fiscal Years 1994, 1995, and 1996 Department of Army COL Promotion
Selection Boards.

3.  On 31 July 1997, the applicant was released from active duty in the
rank of LTC after completing a total of 26 years, 2 months, and 24 days of
creditable active service and placed on the retired list effective 1 August
1997.

4.  The applicant's Officer Evaluation Report (OER) history, beginning with
OERs version 67-8, is as follows (* indicates applicant’s senior rater (SR)
potential block rating):

           OER Period Ending            SR Block Rating

           16 March 1981          *4/0/0/0/0/0/0/0/0
           23 July 1981                 *11/7/5/6/5/0/0/0/0
           23 July 1982                 22/*18/8/11/8/0/1/0/0
           11 May 1983            1/*9/8/3/0/1/0/1/0
           11 May 1984            3/*4/5/0/0/0/0/0/0
           11 May 1985            *9/3/8/0/0/0/0/0/0
           11 May 1986            *3/2/0/2/0/0/0/0/0
           5 June 1987, Academic Evaluation Report, Air Command and Staff
                 College, Achieved Course Standards
           10 April 1988                *28/31/17/2/0/0/0/0/0
           12 January 1989        *7/5/2/0/0/0/0/0/0
           12 July 1989                 *13/7/6/0/0/0/0/0/0
           30 June 1990           36/*50/19/5/1/0/0/0/0
           5 May 1991             24/*29/13/0/0/0/0/0/0
           5 May 1992             2/*4/2/0/0/0/0/0/0
           5 May 1993             *2/0/0/0/0/0/0/0/0
           28 May 1994            *50/3/1/0/0/0/0/0/0
            1 September 1994      *39/4/0/0/0/0/0/0/0
            1 September 1995      10/*11/0/0/0/0/0/0/0
            15 August 1996        *23/11/0/0/0/0/0/0/0

5.  By letter mailed to USAHRC on 25 July 2003, the applicant requested
promotion reconsideration because of recent legal action concerning reverse
discrimination issues during Army promotion boards.

6.  By letter dated 15 October 2003, 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 Fiscal Year 1996
board results were released on 19 December 1996.)  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.

7.  By letter dated 27 October 2003, the applicant requested a waiver to
the time limit for promotion reconsideration as he was never officially
notified that he was eligible for such a relook based on the inequalities
of the boards under which he was originally considered.  As a retiree, his
lines of communication were limited.  This letter was lost and not received
by USAHRC until June 2004 at which time they denied his request.

8.  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.

9.  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.

10.  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.

11.  MILPER message 03-170, issued 12 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 Years 1994, 1995, and 1996
COL promotion selection boards contained constitutionally improper race and
gender-based goals 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.

3.  MILPER message 03-170 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.  The applicant's contention that he filed as soon as he found out about
the process is noted; however, Congress allowed the Service Secretaries to
set time limits applicable to the filing of the application for such
consideration.  He, unfortunately, fell outside that time limit and 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 his case, the Board believes there is
insufficient compelling justification to warrant reconsideration by an SSB.
 His OER history shows that he was rated as a center of mass officer.  He
was considered for promotion to COL during a period of drawdown, and the
Board believes his OER history indicates that it is not reasonable to
presume that he was not selected for promotion solely because of the Equal
Opportunity instructions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __rd____  _cd_____  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.




            __John N. Slone_______
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040004020                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050517                                |
|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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