RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050018188


      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. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 Major, O-4 and retired as a Major.

2.  The applicant states the fiscal years 1999 and 2000 (FY 99 and FY 00)
active duty chaplain Major promotion boards were given instructions by the
Secretary of the Army which resulted in an unfair and unconstitutional
consideration of his records for promotion.  Paragraph 8 of the memorandum
of instructions (MOI) called upon the board to give special consideration
to Roman Catholic chaplains. Those instructions resulted in his being
discriminated against due to his religion.  As a medical retiree, he would
then be entitled to be retired at the highest rank held regardless of time
in grade or whether the promotion would have been effective at the date of
his retirement, provided that his name was on the promotion list.

3.  The applicant states his application was filed outside the Board’s
three-year statue of limitations because the Army did not provide him with
copies of the MOIs to the promotion boards until 21 November 2005, and
legal precedents regarding religious discrimination has only recently been
established.

4.  The applicant provides promotion board MOIs dated 4 March 1999 and
  20 March 2000; a memorandum dated 13 April 2000; and his DD Form 214 for
the period ending 1 December 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 December 2000.  The application submitted in this case is
dated                13 December 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  After having had prior service, the applicant entered active duty on 4
February 1995 as a chaplain in the rank and grade of Captain, O-3.

4.  The applicant was first considered for promotion to Major by the FY 00
chaplain promotion board.  Paragraph 7 of the 4 March 1999 MOI provided
more than a page of instructions on Equal Opportunity.  Subparagraph 7c
stated in part, “Your goal is to achieve a selection rate in each minority
group…that is not less than the selection rate for all officers in the
promotion zone of consideration (first-time considered).”

5.  Paragraph 8 of the 4 March 1999 stated, “Denominational diversity
within the structure of the Chaplaincy contributes to mission
accomplishment and fosters vitality within the Chaplaincy itself.  Of the
many denominations within the Chaplaincy, the Army has a critical shortage
of Roman Catholic priests.”

6.  The applicant was not selected for promotion to Major by the FY 99
board.

7.  Paragraph 7 of the 20 March 2000 MOI provided slightly more than half a
page of instructions on Equal Opportunity.  The board was not instructed to
achieve a goal in the selection rate of minority officers.

8.  Paragraph 8 of the 20 March 2000 once again stated, “Denominational
diversity within the structure of the Chaplaincy contributes to mission
accomplishment and fosters vitality within the Chaplaincy itself.  Of the
many denominations within the Chaplaincy, the Army has a critical shortage
of Roman Catholic priests.”

9.  The applicant was not selected for promotion to Major by the FY 00
board.

10.  For an unknown reason, the applicant was reconsidered for promotion to
Major by a special selection board under the 1999 criteria.  He was not
recommended for promotion.

11.  On 1 December 2000, the applicant was released from active duty and
placed on the Temporary Disability Retired List the following day due to
asthma and diabetes.

12.  In the processing of this case, an advisory opinion was obtained from
the Director, Personnel and Ecclesiastical Relations, Office of the Chief
of Chaplains.
The advisory opinion noted that, although the Army Chaplaincy has been
critically short of Roman Catholic chaplains, floors have never been set to
fill this faith group shortage through promotions.

13.  The advisory opinion noted that, in FY 99, the above zone and primary
zone group contained 80 chaplains.  Of that, six were Roman Catholic and 72
were Protestant (no Jewish or Islamic chaplains).  Of the 36 officers
selected for promotion to Major, one was Roman Catholic (for a 1.25 percent
selection rate) and the other 35 of Protestant faith (for a 43.75 percent
selection rate).

14.  The advisory opinion noted that, in FY 00, the above zone and primary
zone group contained 82 chaplains.  Of that, six were Roman Catholic and 76
were Protestant (no Jewish or Islamic chaplains).  Of the 42 officers
selected for promotion to Major, one was Roman Catholic (for a 1.21 percent
selection rate) and the other 41 of Protestant faith (for a 50.0 percent
selection rate).

15.  The advisory opinion noted that, given the promotion statistics for
the two promotion boards and the absence of critical faith group promotion
instructions in the MOIs, it was readily apparent that Roman Catholic
chaplains did not receive special consideration for promotion by either
board.

16.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He rebutted that the statistics provided by the
Office of the Chief of Chaplains were misleading at best.  Since the true
selection rate of Roman Catholic chaplains who were considered in both
years was one out of six, the selection rate was actually 16.7 percent, not
1.25 percent and 1.21 percent.  In addition, the Roman Catholic chaplain
who was promoted by the FY 99 board was promoted below the zone.  For each
officer promoted below the zone, one must be removed from the primary/above
the zone promotion list.  With regard to the [Roman Catholic] officer
promoted below the zone, if even one officer was passed over due to special
consideration based on religious considerations, then the results of the
entire board must be questioned.

17.  The applicant stated that, furthermore, contrary to the advisory
opinion’s claim that it was “readily apparent that Roman Catholic chaplains
did not receive special consideration for promotion by either board,” he
submits that the instructions to the promotion board did, in fact
constitute illegal and discriminatory instructions to provide Roman
Catholic chaplains with special consideration.  This has been confirmed by
competent legal counsel.

18.  On 5 June 2000, the U. S. Court of Federal Claims established, in a
case concerning an officer selected by a Selective Early Retirement Board
(SERB) for early retirement, that the MOI used by the SERB was invalid, in
part, because it was clear on its face that the MOI created a race and
gender-based goal and that it required consideration of different factors
in evaluating minority and female officers than when evaluating white male
officers.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the Courts ruled that the pre-2000 selection
board MOIs contained constitutionally improper race and gender-based goals.


2.  However, contrary to the applicant’s contention in his rebuttal to the
advisory opinion, the Courts have not ruled that instructions pertaining to
denominational diversity and the critical shortage of Roman Catholic
priests is unconstitutional.  It is noted that the paragraph in the MOI
pertaining to the shortage of that particular denomination in the Army
Chaplaincy does not instruct the board to achieve a goal of promoting Roman
Catholic chaplains nor does it require the board to consider different
factors in evaluating Roman Catholic chaplains than when evaluating
Protestant (the only other denomination other than Roman Catholic
considered by the FY 99 and FY 00 Major Chaplain promotion boards)
chaplains. The applicant has not cited any controlling legal precedent.

3.  Considering the great disparity between promotion selection rates for
Roman Catholic chaplains and Protestant chaplains resulting from both the
FY 99 and the FY 00 Major Chaplain promotion boards, it speculative to
presume that those instructions resulted in the applicant being
discriminated against due to his religion.  It is noted that the “actual”
selection rate of 16.7 percent for Roman Catholic chaplains, as noted by
the applicant in his rebuttal to the advisory opinion, was still far below
the 43.75 percent and 50.00 percent selection rates for Protestant
chaplains for those two boards.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 December 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    30 November 2003.  The applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.
Although the applicant contended the Army only recently provided him copies
of the MOI, such instructions are routinely made available after results of
promotion boards released.  The applicant did not state when he requested
copies of the instructions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__alr___  __lmb___  __qas___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018188                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|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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