RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20060014903 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Mr. Richard Dunbar

Chairperson

Mr. Chester Damian

Member

Mr. Edward Montgomery

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, the deceased officer's spouse, requests promotion reconsideration to Colonel, O-6, and if favorably considered that his records be further corrected to show that he remained on active duty until his death and that she be given all back pay and allowances to include death gratuity and Service Members Group Life Insurance.

2.  The applicant states, in effect, that her husband, the former service member (FSM), was not selected for promotion to colonel by a promotion board in 1996.  She believes that the promotion boards were unconstitutional and that her husband's promotion non-selection was in error and unjust.  She states, in effect, that the memorandum of instructions (MOI) to the promotion selection boards contained an improper race and gender-based goal for retaining a percentage of minority and female officers, which was later found to be unconstitutional.  She states that her husband died before this issue was litigated and she only recently learned of the error. 

3.  The applicant provides her marriage certificate, spouse's death certificate, spouse's DD Form 214 (Certificate of Release or Discharge from Active Duty) with a retirement date of 30 September 1997, and a partial copy of MILPER Message Number 03-170.

CONSIDERATION OF EVIDENCE: 

1.  The FSM entered active duty on 9 July 1975 and served continuously in the Regular Army until his retirement on 30 September 1997.  He served honorably for 22 years, 2 months, and 22 days as an Aviation Logistics Specialist and as a Research Development Specialist.  The FSM died on 8 August 1999 of atherosclerotic coronary artery disease.  

2.  The applicant's Officer Evaluation Reports (OERs) all contain highly commendable comments indicating he was extremely knowledgeable in the field of Army fixed wing aviation.  He did not meet the height and weight screening tables, but met the weight standards after further evaluation.  None of the OERs on record contains any derogatory comments.  His OER (version DA Form 67-8) history, beginning with his promotion to Lieutenant Colonel, O-5, on 1 July 1992, 



and his senior rater (SR) block ratings (the asterisk indicating the applicant's rating) out of the number of officers within his rank that the senior rater evaluated him against, follows: 

OER Period Ending		SR Block Rating 

17 February 1996		*1/1/0/0/0/0/0/0/0
17 February 1995		*6/9/5/0/0/0/0/0/0
3 June 1994			*10/20/18/2/0/0/0/0/0/0
3 January 1994		*1/1/0/0/0/0/0/0/0
3 January 1993		*1/1/0/0/0/0/0/0/0
1 July 1992			*6/18/20/0/0/0/0/0
8 March 1991		*1/5/41/0/0/0/0/0/0

3.  The applicant had been considered but not selected for promotion to colonel by the Fiscal Year 1996 Colonel Promotion Selection Board.

4.  On 16 August 2007, Human Resources Command (HRC)-Alexandria, Promotions Branch, rendered an advisory opinion.  The Chief, Promotions Branch, USAHRC, advised the Board that MILPER Message 03-170 gave active duty and retired officers the opportunity to challenge the results of promotion selection boards that convened prior to 1 October 1996.  Paragraph 5 of the message states, in pertinent part, all applications for special selection boards must be received by the appropriate agency no later than one year after the official release date of this message.  Applications received more than one year after release of this message will be considered untimely unless the applicant provides a compelling justification.  

5.  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.  



6.  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.

7.  Title 10, U. S. Code, section 1558(e)(2), states that the Secretary may prescribe in the regulations under section 1558(e)(1) the circumstances under which consideration by a special 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 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.

8.  Military Personnel (MILPER) message 03-170, issued 12 May 2003, outlines the criteria set by the Secretary of the Army under which consideration by a special 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 boards and special selection boards must be received by the appropriate agency no later than one year after the official release date of this message or the original board results were released, whichever is later."  Applications received more than one year after release of the message or the date the original board results were released, whichever is later, will be treated as untimely.  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.  After one year from the date of the message, applications based on original board results that were released more than one year before the date of the message will be treated as untimely, absent compelling justification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Fiscal Year 1996 Colonel Promotion Selection Board contained constitutionally improper race and gender-based goals 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 that members challenging unfavorable treatment by a selection board apply to their Service Secretary for consideration by a special board or a special selection board.  
2.  Title 10, U. S. Code, section 1558, 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 states that "applications for special boards and special selection boards (SSB) must be received by the appropriate agency no later than one year after the official release date of this message (12 May 2003) or the original board results were released, whichever is later."  The FSM had the ability to request a SSB in FY 1997, which was within one year of the FY 1996 Colonel Promotion Board results.  There is no record that shows the applicant applied for a SSB based on procedural error or inaccuracies in his official promotion file. 

4.  MILPER message 03-170 then went on to give three situations and how applications for special boards would be treated in each situation:

a.  applications received more than one year after release of the message or the date the original board results were released, whichever is later, will be treated as untimely;

b.  applications 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; and  

c.  after one year from the date of the message, applications based on original board results that were released more than one year before the date of the message will be treated as untimely, absent compelling justification.

5.  Congress allowed the Service Secretaries to set time limits applicable to the filing of the application for such consideration.  Congress did not require that every officer or deceased officer's next of kin affected be personally notified of the opportunity for promotion reconsideration.  

6.  Although the guidance in MILPER message 03-170 is that applications received more than one year after release of the message or the date the original board results were released will be treated as untimely, the applicant's request to determine if the FSM's records should be considered by an SSB as an exception to policy has been carefully considered.


7.  In the applicant's case, there is insufficient compelling justification to warrant reconsideration by an SSB.  The FSM's OER history shows that his senior raters did not rate him so exemplary that would indicate that he would have been selected for promotion.  He was considered for promotion to Colonel during a period of drawdown and his OER history indicates that it is unreasonable to presume that he was not selected for promotion solely because of the Equal Opportunity instructions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___RD __  __CD ___  __EM ___  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.




_____Richard Dunbar________
          CHAIRPERSON




INDEX

CASE ID
AR20060014903
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070927
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.
131.0100
2.

3.

4.

5.

6.