BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100028320 


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:

* reconsideration of his request for retroactive promotion to colonel (COL) with entitlement to back pay and allowances
* reconsideration of his request for reimbursement of travel expenses to his home of record upon retirement and payment for 60 days of accrued and transition leave

2.  With respect to his promotion, the applicant states in a letter addressed to the Secretary of the Army:

* Reserve officers were discriminated against since it was the promotion boards' prior determination (a quota system) that all promotions would go to Regular Army (RA) officers and minorities
* his non-selection for promotion to COL is a grave injustice
* promotion boards were in violation of equal protection and due process rights of persons considered for promotion under the Fifth Amendment of the U.S. Constitution
* in 2000, this practice was determined to be in violation of his constitutional rights by the District Circuit Court
* he was never notified of the District Court judgment regarding the violation of his rights
* the former Secretary of the Army agreed to and he was required to notify and correct the records of those officers negatively affected by the illegal actions of the promotion boards
* he was not and could not be notified using the ineffective and limited system of notification adopted
* he should be entitled to a review by a non-prejudicial promotion board, Reserve Components (RC) Promotion Board (RCSB), or special selection board (SSB) to correct this grave injustice

3.  With respect to his moving expenses and leave, the applicant states in the same letter addressed to the Secretary of the Army:

* he followed the orders of his chain of command when he was told to go home
* he was told by retired Sergeant Major J____ H____ (now deceased) that his chain of command was out to get him
* his supervisor made a false statement that he (the applicant) could not be contacted
* he was told the Army makes changes to orders all the time

4.  The applicant did not provide any additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in:

	a.  Docket Number AC97-06153 on 27 August 1997 [retroactive promotion and entitlement to back pay and allowances] and

	b.  Docket Number AR2000041919 on 1 February 2001 [travel expenses and leave associated with retirement].

2.  With respect to the travel expenses and leave issue, Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed this request for reconsideration and determined that his request for reconsideration was not received within 1 year of the ABCMR's original decision.  As a result, his request for reconsideration regarding travel reimbursement and leave payment does not meet the criteria outlined above and will not be discussed further in this Record of Proceedings.

3.  With respect to the promotion issue, the applicant did not provide any new evidence.  However, he presents a new argument in which he refers, in effect, to the 1999 U.S. District Court for the District of Columbia to settle a lawsuit regarding two officers who claimed the affirmative action portion of instructions used by the promotion board violated their equal protection and due process rights under the Fifth Amendment to the U.S. Constitution.

4.  Although the applicant did not meet the two-tiered standard for reconsideration in that his request is more than 1 year after the Board's decision and he failed to provide any new substantial evidence, due to Secretarial interest, the new argument shall be considered new evidence and will be considered by the Board as an exception to policy.

5.  The applicant's records show he was appointed as a U.S. Army Reserve (USAR) second lieutenant on 4 June 1971 with concurrent call to active duty.  He served in various staff or leadership positions and completed the Infantry Officer Advanced Course.  He was honorably released from active duty in the rank of captain on 9 January 1979 and he was transferred to the USAR Control Group.

6.  While in the USAR, he also served in various RC staff and leadership positions and he was promoted to major on 2 October 1983.  He also completed the Command and General Staff College on 22 June 1990 and he was promoted in the USAR to lieutenant colonel (LTC) on 1 October 1990.

7.  He entered active duty on 26 April 1991.  He was assigned to the U.S. Army Physical Evaluation Board, Fort Sam Houston, TX, where he served as a personnel management officer.

8.  On 11 March 1999 in conjunction with his ongoing physical evaluation board (PEB), he submitted a request for an exception to policy for early retirement in lieu of a physical disability separation.  He requested to be placed on the Retired List effective 1 September 1999.

9.  On 30 March 1999, an informal PEB convened at Walter Reed Army Medical Center.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to pain (back, neck, hips, knees, and left ankle).  He was rated under the Veterans Affairs Schedule for Rating Disabilities and he was assigned a 10-percent disability rating.  The PEB recommended his separation with entitlement to severance pay.

10.  On 21 May 1999, his request for early retirement was approved.  On 31 August 1999, he was honorably retired and he was placed on the Retired List in the rank of LTC on 1 September 1999.  He completed a total of 16 years, 9 months, and 2 days of creditable active service.

11.  The applicant's MAJ officer evaluation report (OER) history is listed below.  An asterisk indicates the applicant's senior rater (SR) potential block rating:

* OER Period Ending		SR Block Rating
* 31 October 1984			2/4/5*/3/0/0/0/0/0
* 30 September 1985		15/17*/5/1/0/0/0/0/0
* 30 September 1986		1/9/3/5*/0/0/0/0/0
* 31 January 1987			1/9/3/6*/0/0/0/0/0
* 17 August 1987			31*/44/36/10/1/1/0/0/0 
* 31 January 1988			6/6/15*/8/4/0/0/0/0
* 28 June 1988			10/14*/19/8/4/0/0/0/1
* 28 June 1989			1/11/8/9*/5/0/0/0/0/
* 6 August 1989			1/11/10*/10/5/0/0/0/0
* 29 June 1990			0/2*/0/1/0/0/0/0/0

12.  The applicant was promoted to LTC on 1 October 1990.  His LTC OER history is listed below.  An asterisk indicates his SR potential block rating:

* OER Period Ending		SR Block Rating
* 31 October 1991			1/6*//4//0/0/0/0/0/0
* 31 January 1992			14/15*/2/0/0/0/0/0/0
* 31 January 1993			29/24*/4/0/0/0/0/0/0
* 31 January 1994			48*/33/5/0/1/0/0/0/0
* 30 June 1994			58*/35/5/0/1/0/0/0/0
* 30 June 1995			3*/1/0/0/0/0/0/0/0
* 31 March 1996			5*/1/0/0/0/0/0/0/0
* 31 March 1997			41*/2/0/0/0/0/0/0/0
* 30 September 1997		50*/3/0/0/0/0/0/0/0

13.  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 General's Corps (JAGC) LTC's who claimed the affirmative action portion of instructions used by the COL promotion board violated their equal protection and due process rights under the Fifth Amendment to the U.S. Constitution.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to COL through an SSB representing the Fiscal Year (FY) 1997, FY97 (August), and FY 99 COL JAGC Promotion Selection Board.  An additional special instruction directed that only one JAGC officer sit on the SSB's and that he/she be USAR.  Also, the original memorandum of instruction, paragraph 7 (the equal opportunity instructions) would be revised.

14.  On 5 June 2000, the U.S. Court of Federal Claims established in Christian versus United States (a case concerning an officer selected for early retirement by a Selective Early Retirement Board (SERB)) that the equal opportunity instructions used by the SERB were unconstitutional because the Army lacked a compelling governmental interest to justify separate promotion procedures/
instructions based on race.  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 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.

15.  The Secretary of the Army directed and DOD approved several provisions with respect to the indicated selection boards.  The Deputy Chief of Staff for Personnel, G-1, Special Review Board was designated as a special board for individuals in these categories.

16.  Military Personnel (MILPER) Message 03-170, dated 12 May 2003, outlined 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."

17.  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 an SSB.

18.  Title 10, U.S. Code, section 628(j), states 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 is contingent upon application by or for that person and (b) any time limits applicable to the filing of the application for such consideration.

19.  Army Regulation 624-100 (Promotions of Officers on Active Duty), in effect at the time, and Army Regulation 600-8-29 (Officer Promotions), currently in effect), prescribe the policies and procedures for promotion of commissioned officers on the Active Duty List.  It states:

	a.  Commissioned officers were recommended for promotion by their commanders and were selected by centralize (service-wide) promotion boards who made promotion determinations based upon the officers' promotion records. 
The two most significant factors in officers' promotion records are inarguably their fitness report(s) and level of responsibility in their current and past assignments.  An average fitness report can result in being "passed over."  Lack of current or previous assignments that had significant degrees of responsibility can also result in not being selected.

	b.  An SSB is convened to consider commissioned officers for promotion when Headquarters, Department of the Army, discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error, or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error, or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to COL.

2.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army in his memorandum of instruction establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

3.  It is unfortunate the applicant was not selected for promotion to COL; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.

4.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

5.  His contentions the FY97 COL 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 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.  However, this decision did not apply to the issues he raised alleging disparity treatment of other than RA officers versus RA officers.

6.  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.

7.  MILPER Message 03-170, dated 12 May 2003, stated 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 was submitted more than 1 year after the date of the message.

8.  A review of the applicant's MAJ and LTC OER's reveals that even though they all contained positive comments, he was rated generally as an average officer (center of mass).  Based on a review of the applicant's OER's and the applicant's 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 limitation imposed on applications for consideration by an SSB.

9.  In view of the facts of this case, there is an insufficient evidentiary basis to support the applicant's promotion or reconsideration 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC97-06153, dated 27 August 1997.



      __________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)                                         AR20100028320



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028320



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1