RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 
	DOCKET NUMBER:  AR20060007206 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck

Member

Mr. Donald L. Lewy

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 retirement date be changed from 31 August 1992 to 31 August 1999, and that his active duty pay and pension be adjusted accordingly.

2.  The applicant states, in effect, that he was selected for mandatory early retirement under the provisions of sections 638 and 638a, Title 10, United States Code, in 1992.  He states that the reason he is requesting this change is to effect his retirement date and pay.

3.  He further states, in effect, that he would like to have the same "equal protection of the law" as given to his fellow officers when they faced the consequences of the illegal Selective Early Retirement Board (SERB) instructions.

4.  The applicant provides:

     a.  a copy of a notification letter from the Office of the Deputy Chief of Staff for Personnel (ODCSPER), dated 18 March 1992;

     b.  a copy of a notification letter from the Office of The Judge Advocate General (OTJAG), dated 27 March 1992;

     c.  a copy of U.S. Total Army Personnel Command Orders S117-4, dated  
17 June 1992; and 

     d.  a copy of the U.S. Court of Federal Claims decision in Robert F. Christian, II v. The United States, case number 97-165C (filed June 5, 2000).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 31 August 1992, the date of his retirement.  The applicant initially filed an application with the ABCMR on 21 January 2001.  However, the ABCMR returned this application without action because it was deemed premature in light of ongoing litigation in the case of Christian v. United States in the United States Courts of Federal Claims.  The application resubmitted in this case is dated 
23 May 2006.

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.  The applicant's service records show that he was appointed as a Reserve commissioned Officer on 5 June 1966.  He entered active duty on 17 August 
1969 and was branch transferred to the Judge Advocate General Corps.

4.  While on active duty he served in numerous assignments which led to achieving the rank of colonel on 1 October 1988.

5.  In 1992, Congress mandated a drawdown of military forces.  As a result a selective early retirement board was conducted to select U.S. Army officers as candidates for mandatory early separation.

6.  On 18 March 1992, the ODCSPER notified the applicant by letter to inform him that he was selected for mandatory early retirement under the provisions of sections 638 and 638a, Title 10, United States Code.  The letter stated that his retirement date would be 31 August 1992, unless he voluntarily selected an earlier date, if eligible.

7.  In a letter from OTJAG, dated 27 March 1992, it was confirmed the colonel Judge Advocate General's Corps Selective Early Retirement Board had selected the applicant for a mandatory early retirement.

8.  On 31 August 1992, the applicant was honorably retired in the rank of colonel.

9.  The applicant has admitted that he did not challenge the Army decisions and he accepted the selection for his early retirement, so therefore, he went on with his life.

10.  After nine years, the applicant submitted a request to the ADRB to change his retirement date from 31 August 1992 to 31 August 1999.  He based his request on the case decision of the U.S. Court of Federal Claims, Christian v. United States, 46 Fed. Cl. 793 (2000).  In that case decision, the court concluded as a matter of law that the instructions to the SERB were improper and reparations were due those officers whose careers were unfairly cut short by the SERB.  The Army officers selected for mandatory early retirement were comprised of officers in the Army Competitive Category in the rank of lieutenant colonel (LTC).  The Army appealed this decision to the United States Court of Appeals for the Federal Circuit.  On 29 July 2003, that Court reversed the Federal Court of Claims in part.

11  In essence, the Court ruled that officers selected for early retirement were not per se entitled to reparations just because they were a member of a class of white officers selected by the SERB.  Christian v. United States, 337 F. 3d 1338, 1349 (Fed Cir. 2003).  The Court remanded the case with instructions to the Secretary of the Army to institute a procedure to determine which officers in the affected LTC SERB would have been continued but for the improper instruction given to the SERB.  Records show that the applicant was boarded by a specialty branch which reviewed officers in the category for Judge Advocate General Corps (colonel).

12.  The SERB reviewed in Christian convened on 14 January 1992, pursuant to the memorandum of instruction for the Secretary and recessed on 6 February 1992, recommending the retirement of 1169 LTCs.  The Secretary of the Army approved the SERBs recommendations on 29 February 1992, and the LTCs and others selected for retirement were required to retire no later than 31 August 1992.  Eight months after the SERB recessed, Congress enacted a law that amended DOPMA at 10 U.S.C. section 638a Pub. L. No. 102-484.  The newly inserted paragraph, effective 23 October 1992, gave the Secretary the option of submitting all the names of eligible LTCs in a competitive category or submitting the names of LTCs in a competitive category who are also in particular year groups or specialties, as was already the case for lower grade officers to a SERB.  The sections' language in effect at the time of the 1992 LTC ACC SERB's deliberations was silent on submissions with specific instructions for considering particular classes of officers within a competitive category, but not expressly prohibitive of such instructions.

13.  As a result of the U.S. Federal Court of Claims decision in Christian, section 503 of the National Defense Authorization Act for Fiscal year 2000 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.

14.  Title 10, U.S. Code, section 1558(e) states the Secretary of a military department may correct a person's military records in accordance with a recommendation by a special selection board.

15.  Title 10, U.S. Code, section 1558(e) 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.

16.  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 included 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 requests to change his retirement date from 31 August 1992 to 31 August 1999.  His request is based on the U.S. Court of Federal Claims case decision, Christian v. United States, in which the court concluded as a matter of law that the instructions to the SERB were improper and reparations were due those officers (in the rank of LTCs) whose careers were cut short by the SERB.  However, the later decision by the U.S. Court of Appeals for the Federal Circuit made clear that reparations were not due to the affected officers just because they were a member of a class of officers potentially selected by the SERB as a result of the faulty board instruction.

2.  Likewise, as a result of the Claims Court's decision, section 503 of the National Defense Authorization Act of Fiscal year 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.

3.  The records show that the case involving Christian involved LTCs selected for involuntary retirement from the Army Competitive Category in 1992, and not involuntary retired Judge Advocate General Corps colonels.  The relief in Christian was limited to that class of officers.

4.  Title 10, U.S. Code, section 1558 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.  Any claim against the United States must have been filed within six years after the claim accrued.  However, since MILPER message 03-170 was issued on 12 May 2003, the applicant was barred from filing a claim.
5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
30 August 1995.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___mjnt__  ___jgh __  ____dll__  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.




__________Marla J. N. Troup________
          CHAIRPERSON




INDEX

CASE ID
AR20060007206
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20060007206
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
 DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.