RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 September 2006
      DOCKET NUMBER:  AR20060009679


      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:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Jonathan K. Rost              |     |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, in effect, that his records be corrected to
show he was promoted to Major, O-4 when he was on active duty.

2.  The applicant states, in effect, that 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 promotion
board that caused him to be nonselected.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 12 March 1996 with a
related DD Form 215 (Correction to DD Form 214), his current active duty
orders; an extract from Title 10, U. S. Code, section 628; and his 20-year
letter.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Army National Guard, the
applicant was appointed a Second Lieutenant in the U. S. Army Reserve
  and entered active duty on 11 May 1985.  He was promoted to Captain on
      1 September 1989.

3.  The applicant's Officer Evaluation Reports (OERs), during which he
performed duties as an Assistant Brigade S-3 (Operations), Squadron S-4
(Logistics), Troop Commander, and Public Affairs Officer, all contain
highly commendable comments.  His Captain Evaluation Report History follows
           (* indicates applicant’s senior rater (SR) potential block
rating):

           OER Period Ending            SR Block Rating

           12 December 1989       *22/15/8/5/1/0/1/0/0

            12 June 1990 (Armor Advanced Course)  Achieved Course Standards

           18 May 1991            4/*9/0/0/0/0/0/0/0

           4 October 1991         0/*2/0/0/0/0/0/0/0


           16 March 1992          4/*5/0/0/0/0/0/0/0

           10 July 1992                 not rated

           15 January 1993        12/*17/3/4/2/0/0/0/0


           17 March 1993 (Public Affairs Course)  Achieved Course Standards

           24 August 1994         *2/0/1/0/0/0/0/0/0

           22 August 1995         *4/0/1/0/0/0/0/0/0

           11 December 1995       *11/1/0/0/0/0/0/0/0

4.  The applicant was apparently a one-time non-select for promotion to
Major.  On 12 March 1996, he was released from active duty under the
Special Separation Benefit Program and was transferred to the U. S. Army
Reserve.  He was promoted to Major on 18 December 1998.  He entered active
duty in an Active Guard Reserve (AGR) status on 23 September 2001.  His
OERs after that date show he performed duties primarily in the Public
Affairs area.  He was promoted to Lieutenant Colonel on 1 December 2004.

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 Judge Advocate Generals’ Corps
(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 representing the fiscal year (FY) 1997, FY 1997 (August), and FY 1999
Colonel JAGC Promotion Selection Board. 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 were 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 that his [1996] Major 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 and his promotion
board was outside that 6-year window.

4.  A review of the applicant's Captain OERs reveal, even though they all
contained highly commendable comments, that he was rated as a center of
mass officer on all of them.  Retention during the drawdown period, which
included the time he was considered for promotion, was keenly competitive.


5.  It is also noted that the applicant was on active duty, performing
Public Affairs duties, at the time MILPER message 03-170 was released.  He
provides no explanation as to why he waited 3 years to submit his
application.

6.  Based on a review of the applicant's OERs and his 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

__sap___  __dkh___  __jkr___  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.




                                  __Susan A. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009679                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|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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