RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            9 June 2005
      DOCKET NUMBER:   AR20040008179


      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. Lester Echols                 |     |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:

1.  The applicant requests promotion reconsideration to Colonel, O-6.

2.  The applicant states, in effect, that the memorandum of instructions
(MOI) to the promotion selection boards contained a constitutionally
improper race and gender-based goal for retaining a percentage of minority
and female officers which has recently been found to be unconstitutional.
He was nonselected for promotion to Colonel during the Fiscal Years 1995
through 2000 Colonel Selection boards.  He feels that since he was never
given official notification that he was eligible for a relook he should not
be held to the timeline in a message.

3.  The applicant provides his request for promotion reconsideration and
the       3 June 2004 response from the U. S. Army Human Resources Command
(USAHRC).

CONSIDERATION OF EVIDENCE:

1.  After having prior service, the applicant was commissioned and entered
active duty around August 1977.

2.  The applicant's Officer Evaluation Reports (OERs) all contain mostly
highly commendable comments.  None of them contain any derogatory comments.
 His OER (version DA Form 67-8) history, beginning with his promotion to
Major, O-4 on 1 June 1989, and his senior rater (SR) block ratings (the
asterisk indicating the applicant's rating), follows:

           OER Period Ending            SR Block Rating

           2 June 1990            8/*20/6/0/0/0/0/0/0
           2 June 1991            *5/2 or 7, partially
      illegible/1/0/0/0/0/0/0
           31 December 1991       *18/19/12/0/0/0/0/0/0
           31 December 1992       *1/0/0/0/0/0/0/0/0
           31 December 1993       *1/0/0/0/0/0/0/0/0


(The applicant was promoted to Lieutenant Colonel, O-5 on 1 May 1994)


           Academic Evaluation Report for the Program Management Course
period ending 10 June 1994, Achieved Course Standards

           10 June 1995           *2/0/1/0/0/0/0/0/0
           10 June 1996           *1/0/0/0/0/0/0/0/0
           10 June 1997           *22/0/0/0/0/0/0/0/0
(DA Form 67-9 version)


           19 June 1998           center of mass
           2 November 1998        center of mass
           31 August 1999         center of mass
           18 April 2000                center of mass

3.  The applicant had been considered but not selected for promotion to
Colonel by the Fiscal Years 1995, 1996, 1997, 1998, 1999, and 2000
promotion selection boards.

4.  In a 28 May 2004 letter to USAHRC, the applicant requested promotion
reconsideration because of recent legal action concerning reverse
discrimination issues during Army promotion boards.  He requested a waiver
of the six-year time limitation.

5.  By letter dated 3 June 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 MOI 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 U. S. Army Personnel
Command (currently designated USAHRC).  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.  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.

7.  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.  Military Personnel (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 1995, 1996, 1997,
1998,         and 1999 Colonel promotion selection boards contained
constitutionally improper race and gender-based goals is not disputed (the
guidance was taken out of the MOI on 1 September 1999 so the Fiscal Year
2000 board is not an issue).  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 (12 May
2003) or the original board results were released, whichever is later."
The applicant's letter to USAHRC was dated 28 May 2004.

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.  Congress allowed the Service Secretaries to set time limits applicable
to the filing of the application for such consideration.  Congress did not
require that every officer affected be personally notified of the
opportunity for promotion reconsideration.

6.  Although the guidance in MILPER message 03-170 is that applications
received more than one year after release of the message or the date the
original board results were released will be treated as untimely, the Board
has considered the applicant's case to determine if his records should be
considered by an SSB as an exception.

7.  In the applicant's 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 Colonel 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

__mhm___  __le____  __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                 |AR20040008179                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050609                                |
|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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