IN THE CASE OF:	

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100000288


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests consideration for promotion to colonel by a special selection board (SSB) under the Fiscal Year (FY) 1998 (98) Colonel, Army, Promotion Board.

2.  The applicant states the FY98 Colonel, Army, Promotion Board used equal opportunity instructions which were determined to be unconstitutional by the U.S. District Court and resulted in the implementation of section 503 of the FY02 National Defense Authorization Act (NDAA).

3.  The applicant states he understands he failed to execute his request for an SSB in a timely manner.  He offers as explanation that he was Chief, Management Support Division, U.S. Army Human Resources Command (HRC), Alexandria, VA, at the time and he was deeply involved in executing the action to provide SSB's for officers affected by the court ruling.  He adds that now that HRC is in the process of moving to Fort Knox, KY, under the Base Realignment and Closure (BRAC) Act, he feels the time is right to address this issue.

4.  The applicant provides:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a 14 December 2009 memorandum for the Army Board for Correction of Military Records (ABCMR)
* a copy of Military Personnel (MILPER) Message Number 03-170, subject:  Applications for Special Boards and Special Selection Boards
* a copy of an undated "draft" memorandum from the Office of the Judge Advocate General to the U.S. Total Army Personnel Command, subject:  Special Selection Board Consideration Based on Claim of Material Unfairness of Equal Opportunity Instruction

CONSIDERATION OF EVIDENCE:

1.  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 also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a commissioned officer in the Infantry Branch on 8 June 1977.  He later acquired a specialty in functional area 41 (Personnel Management).

3.  The applicant retired as a Regular Army lieutenant colonel on 31 December 2000.

4.  When he was on active duty, the applicant was considered for promotion to colonel by the FY98 Colonel, Army, Promotion Board.  He was not selected; however, the FY98 Colonel, Army, Promotion Board used equal opportunity instructions which were deemed materially unfair by the court.

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 Army 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 an SSB using the appropriate FY Army Promotion Board instructions.  Also, the original instructions relative to equal opportunity would be revised.

6.  On 5 June 2000, the U.S. Court of Federal Claims established in Christian versus 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 NDAA for FY02 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 an SSB.

7.  Title 10, U.S. Code, section 628, states that the Secretary of a military department may correct a person's military records in accordance with a recommendation by an SSB.

8.  Title 10, U.S. Code, section 628(j), states that the Secretary may prescribe in the regulations the circumstances under which consideration by an SSB may be provided for under this section, including the following:  (a) the circumstances under which consideration of a person's case by an SSB are contingent upon application by or for that person and (b) any time limits applicable to the filing of the application for such consideration.

9.  MILPER Message 03-170, dated 12 May 2003, outlines the criteria set by the Secretary of the Army under which consideration by an SSB 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 SSB's received within 1 year of the date of the message "may be based on original board results that were released within 6 years of the application."

10.  In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Promotions Branch (Active Component), HRC, Alexandria, VA.  It provides that the applicant was eligible to be considered for promotion by the FY98 Colonel, Army, Promotion Board.  That board was affected by the affirmative action instructions deemed illegal by the U.S. District Court; therefore, the applicant should be afforded an SSB.  The applicant was provided an opportunity to review the advisory opinion and he concurred on 14 June 2010.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FY98 Colonel, Army, 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 NDAA for FY02 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 an SSB.

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 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 that applications for special boards received within 1 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 1 year after the date of the message relating to board results that were released more than 1 year before the date of the message will be treated as untimely, absent compelling justification.  The applicant's request for remedial action is dated more than 6 1/2 years after the date of the message and more than 11 years after his promotion board results through FY 99 (when the unconstitutional language was removed from the special instructions) were released.

4.  The advisory opinion from the Deputy Chief, Promotions Branch, HRC, merely states the obvious; the applicant was eligible for an SSB under Title 10, U.S. Code, section 1558.  While recommending approval of the applicant's request, it does not address his tardiness in making his request.

5.  The applicant's justification for being tardy by more than 6 1/2 years is that he was the action officer responsible for implementing and executing the provisions of Title 10, U.S. Code, section 1558, and he did not believe it right for him to apply under a program for which he was responsible.  In retirement, he became a Department of the Army Civilian, grade GS-15, as Chief, Management Support Division, HRC.  He adds that with the move of HRC from Alexandria to Fort Knox, he believes the time is now right to apply.  

6.  The applicant's justification for being tardy in his request for an SSB does not provide compelling evidence that would warrant overcoming the regulatory time limitations imposed on applications for consideration by an SSB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X___  ___X____  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.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100000288



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)