RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 August 2005
      DOCKET NUMBER:   AR20040010394


      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          |
|     |Ms. Deborah S. Jacobs             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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.  On 18 November 2004, the applicant requested his records be corrected
to show he was promoted to Colonel, O-6 on 1 August 1997.  His application
was received on 26 November 2004.

2.  The applicant states it was the equal opportunity instruction (which
was found to be unconstitutional in Christian v. United States, 46 Fed. Cl.
793, decided on  5 June 2000) given to the Fiscal Year 1997 (FY 97)
promotion board that caused him to be nonselected.  He learned of the
actions directed by the Court, and specifically the Court determination
that the instructions used were unconstitutional, in November 2004 when a
friend electronically mailed a Washington Post article that discussed the
issues involved.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty), a copy of Christian v. United States, and a
copy of a Washington Post newspaper article dated 5 March 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a commissioned officer in the Judge
Advocate General Corps (JAGC) on 7 January 1979.

3.  The applicant's OERs all contain highly commendable comments.  His
Major and Lieutenant Colonel Officer Evaluation Report History follows:

      version 67-8 (* indicates applicant’s senior rater (SR) potential
block rating):

           OER Period Ending            SR Block Rating

           31 January 1988        *9/8/3/0/0/0/0/0/0

           31 January 1989        *1/0/0/0/0/0/0/0/0

           4 July 1989            *3/0/0/0/0/0/0/0/0


           (attended civilian schooling)


           28 February 1991       1/*4/0/0/0/0/0/0/0

           28 February 1992       *4/0/0/0/0/0/0/0/0

           28 February 1993       *9/0/0/0/0/0/0/0/0


           30 June 1993           *16/0/0/0/0/0/0/0/0

The applicant was promoted to Lieutenant Colonel on 7 July 1993.

           30 June 1994           *9/4/1/0/0/0/0/0/0

           30 June 1995           *30/26/3/0/0/0/0/0/0

           30 June 1996           *44/26/3/0/0/0/0/0/0

           30 June 1997           *18/0/0/0/0/0/0/0/0

           30 September 1997            *69/0/0/0/0/0/0/0/0

      version 67-9:

           24 July 1998                 above center of mass

            11 June 1999          center of mass

            9 June 2000                 center of mass

            1 June 2001                 center of mass

            28 October 2001       center of mass

4.  On 1 January 2002, the applicant retired in the rank of Lieutenant
Colonel.

5.  In 1999, the U. S. District Court for the District of Columbia and the
U. S. Army agreed to settle a lawsuit by two JAGC Lieutenant Colonels who
claimed the affirmative action portion of instructions used by the
Colonel’s promotion board violated their equal protection and due process
rights under the Fifth Amendment to the Constitution.  The civil action was
dismissed pursuant to those officers being reconsidered for promotion to
Colonel through a special selection board (SSB) representing the FY 97, FY
97 (August), and FY 99 Colonel JAGC Promotion Selection Board.  An
additional special instruction directed that only one JAGC officer sit on
the SSBs and that he/she be a U. S. Army Reserve officer.  Also, the
original Memorandum of Instruction, paragraph 7 (the equal opportunity
instructions) would be revised.

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 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 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.

8.  Title 10, U. S. Code, section 628 states the Secretary of a military
department may correct a person's military records in accordance with a
recommendation by a special selection board.

9.  Title 10, U. S. Code, section 628(j) states the Secretary may prescribe
in the regulations the circumstances under which consideration by a special
selection 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 selection 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 dated 12 May 2003 outlines
the criteria set by the Secretary of the Army under which consideration by
a special selection 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 selection 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."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions the Fiscal Year 1997 Colonel promotion
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 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.

2.  Title 10, U. S. Code, section 628 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, dated 12 May 2003, states 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.  Applications received more than one year after the date of
the message relating to board results that were released more than one year
before the date of the message will be treated as untimely, absent
compelling justification.  The applicant's request for remedial action was
sent more than one year after the date of the message.  Further, the
applicant's promotion boards through FY 99 (when the unconstitutional
language was removed from the special instructions) were outside that 6-
year window.

4.  A review of the applicant's Major and Lieutenant Colonel OERs reveal,
even though they all contained highly commendable comments, he was rated as
a center of mass officer on all of them except one.

5.  It is acknowledged the OER system under version 67-8 was flawed in that
it quickly led to inflated ratings.  That flaw was recognized and the OER
was later reformed.  Unfortunately, it was reformed too late for the
applicant.  It was also reformed too late for hundreds of other officers
considered by the same promotion board(s).  However, it is also recognized
that the members of the promotion boards were senior officers who were
fully aware of this flaw in the  67-8 OER system.

6.  Unfortunately for the applicant, when a senior rater's rating
philosophy is so inflated he provides 69 top block ratings and no ratings
in any other block (as happened in one of his OERs), it is difficult for
board members to compare officers.  Retention during the drawdown period
was keenly competitive. Promotion boards considered the records of many
good officers and those officers included ones whose records and OERs left
no ambiguity as to how the SR rater felt about them as compared to other
officers rated by that senior rater.

7.  It is also noted the applicant was a JAGC Lieutenant Colonel on active
duty until December 2001, during the 1999 time period the U. S. District
Court for the District of Columbia decided a case in favor of two JAGC
Lieutenant Colonels and during the time period Christian v. United States
was decided.  He provides no explanation as to why he was unaware of the
problems with the equal opportunity language in the special instructions
given to his promotion boards while he was on active duty.

8.  Based on a review of the applicant's OERs and the applicant's failure
to sufficiently explain the lateness of his discovery of the error, there
is no compelling evidence that would warrant overcoming the regulatory 1-
year or      6-year limitations imposed on applications for consideration
by a special selection board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __dsj___  __mjf___  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                 |AR20040010394                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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