RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 August 2004
      DOCKET NUMBER:   AR2004102694


      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. Lester Echols                 |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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 that his records be corrected to show he was
promoted to lieutenant colonel (LTC) under the fiscal year 1999 (FY99)
criteria.

2.  The applicant stated, in his original application, that one of the
board members should have recused himself from the consideration of his
file because of his potential bias against him.  The bias stemmed from the
applicant's filing an extraordinary writ against his office while acting as
a defense counsel representing a captain the board member's office was
court-martialing.  He stated that his official photograph did not appear in
his board file despite its being hand-delivered to the proper custodian.
He acknowledged that the absence of an official photograph, in and of
itself, is explicitly listed in Army Regulation    600-8-29 as typically
not warranting the convening of an SSB.  He also stated that the equal
opportunity instructions to the board were unconstitutional.

3.  The applicant's original application was administratively closed on 8
April 2003 and forwarded to the U. S. Total Army Personnel Command
(PERSCOM) for special selection board (SSB) consideration because of the
issue of the equal opportunity instructions.

4.  In his current request for the Board to take action on his original
application, the applicant noted that he was granted an SSB apparently
because of faulty equal opportunity instructions.  In September 2003, he
was notified that the SSB did not recommend him for promotion.

5.  The applicant states that there were three errors or injustices that,
alone or in combination, warrant his promotion.  He believes, in
particular, that he was prejudiced and penalized by having Colonel W___ sit
on his [1999] promotion board.  He states that it is impossible to deny the
real possibility that his (the applicant's) activities as an effective
defense counsel have been held against him for promotion purposes.  It is
precisely because of this insidious possibility that the Board's precedents
contain at least one instance where an Army Judge Advocate General's Corps
(JAGC) major was ordered promoted in similar, but arguably less egregious,
circumstances.

6.  The applicant states that, as an additional aggravating matter, Colonel
W___ has been assigned as the executive officer to The Judge Advocate
General for the last year and a half.  In that position, he is in charge of
the day-to-day operations of the Office of The Judge Advocate General
(OTJAG) and is in a position to influence who was picked to sit on his SSB
and what information they were provided.  While he has requested copies of
the SSB appointment orders, reports and related documents, he does not
anticipate that he will find a proverbial "smoking gun."  Nevertheless, it
is precisely the clear appearance of injustice in a matter such as this
that has caused the Board to order an officer promoted in the past.

7.  The applicant provides those documents identified on the Enclosure
Listing to his original application.  He also provides the Board's 8 April
2003 administrative close letter and a PERSCOM memorandum dated 24
September 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned in the JAGC on 4 June 1987 and entered
active duty.  He was promoted to major on 1 November 1994.  He was
subsequently considered but not selected for promotion to LTC.

2.  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.

3.  The applicant was considered by an SSB in 2003 for promotion to LTC
under the FY99 criteria but was not selected for promotion to LTC.  He is
still on active duty, as a major, as of 23 July 2004.

4.  The applicant’s Officer Evaluation Reports (OERs) all contain very
highly commendable comments but show that his senior raters (SR) mostly
rated him as a center-of-mass or dual center-of-mass officer.

OER Ending Period            SR Block Rating (* indicates applicant’s
rating)

12 September 1988            12/*26/8/0/1/0/0/0/0
1 June 1989            *18/32/8/0/1/0/0/0/0

25 May 1990            *5/15/3/0/0/0/0/0/0
25 May 1991            *18/26/6/0/0/0/0/0/0
15 September 1991            *26/31/6/0/0/0/0/0/0
19 June 1992           *38/38/6/0/0/0/0/0/0
(The applicant had the same SR for the above group of four OERs).
19 June 1993           *9/5/3/0/0/0/0/0/0
19 June 1994           *14/5/3/0/0/0/0/0/0
19 June 1995           *12/0/0/0/0/0/0/0/0
10 May 1996, Academic Evaluation Report for Graduate School, Achieved
Course Standards
13 December 1996       *41/1/0/0/0/0/0/0/0
30 May 1997            *29/16/0/0/0/0/0/0/0
30 September 1997            *8/0/0/0/0/0/0/0/0

The applicant was rated under the new OER system as follows:

25 May 1998            center-of-mass
25 May 1999            center-of-mass
5 August 1999, Academic Evaluation Report for Command and General Staff
College, Achieved Course Standards

25 May 2000            above center-of-mass
25 May 2001            center-of-mass
18 August 2002 Civilian Institution Academic Evaluation Report, not rated
14 July 2003                 center-of-mass

5.  Title 10, U. S. Code, section 613 states that each member of a
[promotion] selection board shall swear that he will perform his duties as
a member of the board without prejudice or partiality and having in view
both the special fitness of officers and the efficiency of his armed force.

6.  Army Regulation 600-8-29 (Officer Promotions) states that an officer
will not be considered or reconsidered for promotion by an SSB for a number
of reasons, including when the promotion selection board did not see an
official photograph.

7.  The Department of the Army Secretariat policy regarding potential
conflicts of interests between promotion board members is that the
integrity of the board is absolutely paramount.  To prevent the appearance
of partiality or conflict of interest, the board appointing authority will
not appoint board members that the appointing authority knows to be related
by marriage or birth (or adoption) to any officer in the considered
population or to another board member.  When the appointing authority
becomes aware of an apparent conflict of interest after board appointment
but before the board is convened, the board member must be replaced.  When
the appointing authority becomes aware of such information after the board
convenes but before the board recesses, the board member may be removed and
replaced at the appointing authority’s discretion after examining the
potential for partiality, bias, or undue influence in board proceedings.
No otherwise valid board will be considered invalid solely due to the
existence of a potential or apparent conflict of interest.

8.  The U. S. Army Human Resources Command was queried on how they obtain
members to sit on an SSB.  They responded that they try as much as possible
to use members who are already sitting on a scheduled, regular board.  If
for some reason they cannot do so (if the officer being considered by the
SSB is in the population being considered by the scheduled, regular board
or if any of the members sat on the original board), they will contact the
appropriate office (OTJAG, if they require a JAGC board member).  The U. S.
Army Human Resources Command also confirmed that a board member can be
removed from the entire board if he or she is related to someone in the
population.

9.  OTJAG was queried on how they provide members to sit on a promotion
board.  The Plans Officer, Personnel, Plans, and Training Office, OTJAG
responded with an example:  OTJAG will be asked to nominate 4 colonels to
fill  2 board members slots.  OTJAG will also be told if the nominees must
be of a certain gender or ethnic minority and told that the nominees cannot
have served on the board in x number of years and not be within x months of
retirement.

10.  As the JAGC boards officer, the Plans Officer runs a search of all
colonels in the JAGC, listing their gender and race if applicable and
taking out the officers ineligible to serve.  The remaining spreadsheet of
all the available colonels then goes to the Chief of the Personnel, Plans,
and Training Office, who selects          4 officers for each nomination to
recommend to TJAG.  In this example, he would recommend 16 officers.  The
Plans Officer then verifies those 16 officers are actually available (not
deployed, etc).  The recommended list and the full list of qualified
colonels are then taken to TJAG.  He either selects 4 officers from the
recommended 16 nominees or he may select his nominees from the spreadsheet
of all colonels in the JAGC.  TJAG's 4 nominees are then submitted to the
Department of the Army Secretariat and they select 2 for the board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records were reconsidered by an SSB in 2003 for
promotion to LTC under the FY99 criteria due to the equal opportunity
language in the instructions provided to the original promotion board.  He
was not recommended for promotion by the SSB.

2.  The applicant is correct in acknowledging that the fact a promotion
selection board did not see an official photograph is not a basis for SSB
consideration.

3.  The applicant's contentions regarding the presence of Colonel W___ on
the original promotion board, and Colonel W___'s current duty position, are
noted.  Although the reasons a board member may recuse himself (from an
entire board) are extremely limited, the question concerning Colonel W___'s
presence on the original promotion board was resolved when the applicant's
records were reconsidered by an SSB in 2003.

4.  It appears that TJAG does not make the final selection of who sits on a
particular promotion board.  Each member of a promotion selection board
takes an oath to perform his duties as a member of the board without
prejudice or partiality.  It also appears to be almost impossible for a
board member to know in advance who would be considered by that board.  In
the absence of a substantiated finding that any member of the SSB was
unduly influenced by Colonel W___, there is insufficient evidence to show
there was an error or injustice in the applicant not being recommended for
promotion by the SSB.  The burden of proof is on the applicant.

5.  While the "precedent" cases the applicant provided have been noted, the
Board evaluates each case on its own merits.  While past actions (i.e., the
granting or denying of relief) may be considered, "precedent" cases are not
acknowledged as such.

6.  In addition, the applicant’s records, as evidenced by his OER history,
do not appear to be so meritorious as to indicate that the only reason he
was non-selected for promotion was because of undue influence.  Although
all his OERs contained very highly commendable comments, he was, for the
most part, rated as center-of-mass or dual center-of-mass.  Promotion
during the drawdown period was keenly competitive.  Again, absent a
substantiated finding of undue influence, it appears the SSB made the
decision that the applicant's records were not competitive enough to
warrant promotion.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __le____  __mvt___  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.




            ___Raymond J. Wagner__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004102694                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040826                                |
|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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