Affirmative Action Policy (08/23/99) PAY site.
"The Army's affirmative action promotion policies have taken another hit in federal
court with four field-grade officers challenging the legality of "equal
opportunity" instructions used by basic-branch colonels and lieutenant colonels
boards over the past decade.
"The officers, three regulars and one reservist, variously were passed over by active
component Army Competitive Category and reserve component Army Promotion List boards that
met from 1992 to 1999.
"Lt. Cols. Robert Siegert, Michael Ashe, Jay Jupiter and Maj. James Waldeck, claim in
a suit filed Aug. 11 with the U.S. District Court in Washington that portions of
instructions used by the boards violated their equal protection and due process rights
under the Fifth Amendment to the Constitution.
Earlier this summer, Army Secretary Louis Caldera approved a generous settlement
pertaining to an identical lawsuit by Lt. Cols. G. Allan Sirmans and Ronald Buchholz. As
part of the settlement in their favor, Sirmans and Buchholz are to be reconsidered for
promotion to colonel by special boards which Secretary Caldera agreed to convene.
In that settlement, Caldera also agreed to issue new guidelines to the special boards
superceding the previous race and gender guidelines. The old guidelines, which have led
directly to these lawsuits, required boards to essentially re-vote the results of their
reviews until the results matched race and gender "goals" (which Caldera
continues to insist were not quotas). The "goals" were designed to encourage the
selection of women and selected races at rates comparable to white males, apparently with
little regard for service record and/or seniority, according to statements.
"The suit filed Aug. 11 [by Lt. Cols. Robert Siegert, Michael Ashe, Jay Jupiter and
Maj. James Waldeck] asks the [U.S. District Court in Washington] to order the same
measures -- special boards, new instructions, correction of records -- agreed to by the
Army in the Sirmans settlement."
Christopher A. Sterbenz is the attorney representing Siegert, Ashe, Jupiter and Waldeck in
the current lawsuit. Mr. Sterbenz also represented Sirmans and Buccholz in the
lawsuit which earlier this summer resulted in a favorable settlement for the plaintiffs.
(Based on Army Times story 08/23/99, "Newslines" section, page 9, by Jim Tice)
[link (subscribers only): http://www.mco.com/mem/archives/army/1999/at0823k.htm
Affirmative Action Lawsuit to Resume
(07/27/99) PAY site.
"Settlement negotiations have broken off in a reverse discrimination lawsuit that
challenges Army affirmative action policies and the 1992 lieutenant colonel selective
early retirement board (SERB).
"U.S. Court of Claims Chief Judge Loren A. Smith had suspended proceedings in
Christian vs. U.S. on May 7 to allow attorneys for the Justice Department and the Army to
settle with the plaintiff, retired Lt. Col. Robert F. Christian of Peachtree City, Ga. The
case was reinstated one month later after both parties told Smith "no possibility of
an amicable resolution ... exists at this time."
"Christian was one of 1,200 lieutenant colonels involuntarily retired by the 1992
SERB, the most severe force-out action for field-grade officers during the drawdown. The
former air defense officer has challenged the Army's use of race and gender, and branch
and specialty selection goals for the early retirement screening." (Army Times
[link to PAY site: http://www.mco.com/mem/papers/army/army25.htm
|Related / Background:
Lieutenant Colonel Wins Partial Ruling (12/07/98) PAY Site.
"A federal judge is barring a detailed written statement on selection board
procedures penned by a former Army personnel chief from being used as evidence in a
reverse discrimination lawsuit.
"The lawsuit challenges the legality of the 1992 lieutenant colonels selective early
retirement board (SERB).
"That board caused the involuntary departure of 1,200 lieutenant colonels from the
ranks, making it the most severe force-out action for field-grade officers during the
Army's six-year drawdown.
"Routinely, the board reviews files and makes up an order of merit list, then redoes
the list after applying affirmative action and branch and specialty goals.
"One of the officers who was forced out, Robert F. Christian of Peachtree, Ga., has a
case pending in the U.S. Court of Claims in Washington, D.C., that challenges the Army's
use of race and gender, and branch and specialty selection goals for the involuntary
"Similar guidance routinely has been provided to promotion boards, which also are
under challenge in a separate case before District of Columbia District Court. In that
latter suit, two white male soldiers believe they were illegally passed over by the annual
JAG Corps colonels boards that met in 1996 and 1997.
"Their suit seeks a permanent injunction barring the Army from injecting race and
gender goals into the promotion system." (Army Times 12/07/98 page 09 by Jim
[link to PAY site: http://www.mco.com/mem/papers/army/army31.htm
Promotion Board Policies Under Fire /
Army Settles Reverse Discrimination Lawsuit (07/26/99) PAY site.
"Early last year, Lt. Col. G. Allan Sirmans and Lt. Col. Ronald Buchholz filed suit
in federal district court in Washington, D.C., claiming the equal opportunity guidance
that secretaries of the Army provide officer selection boards violate equal protection and
due process rights under the Fifth Amendment to the Constitution.
"The officers, both members of the Judge Advocate General's Corps, had been passed
over for promotion by three JAG Corps colonels boards that met in 1997 and 1998. Citing
Adarand and other similar cases, the officers asked the district court to nullify their
passovers and reconsider them for promotion.
"After battling this case for more than a year, the Army and its Justice Department
attorneys have settled with the two JAG officers out of court.
"Under an order filed June 21 by Judge Royce C. Lambeth, the Army agreed to:
* Convene special selection boards and reconsider
-- separately -- Sirmans and Buchholz for promotion to colonel. As many as six
"relook" boards with different members could be convened.
* In perhaps the most important aspect of this
case, Caldera will issue instructions to the board that significantly modify the
"Equal Opportunity" guidance normally provided boards.
* Under the new guidance, board members will be
told "the Army is committed to unbiased consideration of officers for promotion. You
may not consider race, gender or ethnic background of an officer in the course of your
review and selection of officers for promotion."
* The new equal opportunity guidance will take
precedence over long-standing instructions that generally require boards to conduct file
reviews if they do not meet racial and gender goals. These instructions further require
boards to revote files if they find evidence of racial or gender discrimination.
* If selected for promotion, one or both of the
officers will be advanced to colonel, assigned a retroactive date of rank and provided
appropriate back pay.
* If passed over by the relook boards, one or
both of the officers will be paid an amount equal to the difference between lieutenant
colonel and colonel pay between the time they initially were passed over in 1997, and the
date the last special selection board adjourns." (Army Times 07/26/99, page 10,
by Jim Tice)
[link to PAY site: http://www.mco.com/mem/papers/army/army27.htm
|Related / Background:
Discrimination Suit Taken To Another Level (03/30/98) PAY Site.
"Two military lawyers who recently sued the Army over its use of affirmative action
promotion policies have stepped up their legal challenge by filing a motion for summary
judgment with the federal district court in Washington.
"The motion was filed March 12 by Lt. Cols. G. Allan Sirmans and Ronald J. Buchholz.
It comes less than a month after the two Judge Advocate General's (JAG) Corps officers
filed a suit with the same court, challenging the Army's routine use of race and gender
goals in the officer promotion system.
"The two officers, both white males, were passed over for promotion by the 1996 and
1997 JAG Corps colonels boards.
"[Plaintiff's attorney] Sterbenz said his clients are prepared to show that when they
were passed over, less-qualified blacks and women were selected because of the affirmative
action guidance provided to the boards by the secretary of the Army.
"This guidance, finely crafted by the Army over the past 20 years, encourages boards
to select women and minorities at rates that are equal to, or better than, the primary
zone selection rates of white men, who normally are the dominant race/gender group
considered by boards.
"The JAG Corps officers claim the race and gender goals provided in those
instructions are a violation of the "due process" provisions of the Fifth
Amendment. Such policies, they argue, are not in compliance with recent Supreme Court
decisions that have restricted the scope of government affirmative action policies."
The two officers asked the court to order the Army to nullify their passovers and
reconsider them for promotion, as well as permanently enjoining the Army from using race
and gender in the promotion process. (Army Times 03/30/98 page 04 by Jim Tice)
[link to PAY site: http://www.mco.com/mem/archives/army/1997/army24_890690701.html
Two Jag Officers
Assert The Army Committed Reverse Discrimination (03/16/98) PAY Site.
"Two Judge Advocate General's (JAG) Corps officers, disgruntled at being passed over
for promotion to colonel, have tossed a legal grenade at the Army that could threaten the
service's use of race and gender goals in promotions.
"On Feb. 4, Lt. Cols. G. Allan Sirmans and Ronald Buchholz filed suit in the federal
district court in Washington, D.C., claiming the equal opportunity guidance that the
secretary of the Army routinely provides to officer promotion boards is unconstitutional.
"Pentagon sources said the suit raises some legally dicey issues and that Army
lawyers are treating it "very seriously." An Army loss in the courts on this
issue could disrupt the officer promotion system for years.
"That's what happened in the mid-1970s when the Army had to hold "relook"
boards for thousands of officers illegally passed over and booted out of service during
the post-Vietnam drawdown.
"Sirmans and Buchholz brought the suit because they believe they were illegally
passed over by the annual JAG Corps colonels boards that met in 1996 and 1997.
"Sirmans is assigned to Training and Doctrine Command headquarters, Fort Monroe, Va.,
and Buchholz is with the Army in Washington. Their suit takes aim at the affirmative
action promotion board instructions that have been finely crafted by the Army over the
past 20 years.
"The instructions are meant to encourage the selection of minorities and women at
rates that are comparable to the rate of all candidates in the primary zone.
"White males, almost without exception, are the predominant race/gender group
considered [for early retirement] by promotion boards. Christopher L. Sterbenz, one of two
civilian attorneys working for Sirmans and Buchholz, said these instructions "amount
to a minority set-aside program."
"They are not in compliance with Supreme Court precedent on affirmative action
programs, he said, because they are not based on any evidence of institutional
discrimination. 'The Supreme Court says any programs in this area must be narrowly
tailored to remedy specific past acts of discrimination,' Sterbenz said.
"Sterbenz said his clients, both white males, are prepared to show in court that when
they were passed over for promotion, less-qualified blacks and women were selected on the
basis of race and gender.
"Their suit seeks a permanent injunction barring the Army from injecting race and
gender goals into the promotion system.
"The affirmative action policies, they claim, violate their equal protection and due
process rights under the Fifth Amendment to the Constitution.
"They also ask the court to remove any evidence of promotion passovers from their
official files and to direct the Army to convene a special board or boards to reconsider
them for promotion. (Army Times 03/16/98 page 03 by Jim Tice)
[link to PAY site: http://www.mco.com/mem/archives/army/1997/army7_889483228.html
Discrimination Lawsuits Spur Formation Of Task Force (06/01/98 - no link)
"The Defense Department's general counsel has established a task force to study the
equal opportunity guidance given to service promotion boards and selective early
retirement boards (SERBs), a department spokesman said. Its recommendations could lead to
important changes in how military members are selected for promotion, or during a
drawdown, forced to retire early. The group was formed in response to three pending
lawsuits that challenge the equal opportunity language as unconstitutional, the spokesman
said. He declined to comment further, citing the pending litigation.
"At issue are instructions to Army, Navy, Air Force and Marine Corps boards to give
special consideration to women and minorities. Two of the cases challenge 1992 Army and
Air Force SERBs.
"The boards were instructed to take into consideration that women and minorities
might have been subjected to past discrimination that caused them not to rank as well as
white men. Such discrimination might have included lower evaluations and assignments of
fewer career-enhancing opportunities, the instructions said.
"The boards also were directed not to allow the rate of women and minorities selected
for retirement to exceed that of white men. Any category in which the rate of women or
minority officers selected was higher than that of white men had to be explained in a
follow-up report. [The instructions pointedtly omitted any consideration for length
of service or other qualifications not related to race or gender.]
"The Air Force board selected 610 colonels for retirement. No female colonels were
selected, and the retention rate for blacks was better than the overall average.
"That led to a class action lawsuit by 83 of the colonels selected, who said the
instructions violated their right to equal protection of the laws.
"Meanwhile, a similar case, Christian vs. U.S., is pending against the Army based on
the proceedings of a 1992 Army SERB that met at Alexandria, Va.
"That board selected 1,169 lieutenant colonels for retirement based on similar
guidance. Lt. Col. Robert Christian filed suit, challenging both the equal opportunity
guidance and instructions that specified the percentage of lieutenant colonels in certain
career tracks that should be retained.
"Christian claims the board first decided who should be retired, then took some
minority officers off the retirement list after imposing the equal opportunity guidance.
"A third case, Sirmans vs. Walker, was filed in February to challenge the equal
opportunity provisions of the Army's 1997 promotion board to colonel in the Judge Advocate
General's Corps. Lt. Cols. G. Allan Sirmans and Ronald Buchholz filed the case after both
were passed over twice for promotion. They believe the equal opportunity provisions kept
them from being promoted and are unconstitutional. (Army Times 06/01/98 page 20 by
MacDill Air Force Base: 'Minority'
Contractor Bumps Dozens of Enlisted and Civilian Personnel (09/20/99 - dead link)
"A company that got a key contract at Tampa's air force base through a minority
preference program has workers seething.
"A private company nearly 5,000 miles from Tampa [in Alaska, to be exact] is taking
over critical support functions at MacDill Air Force Base, uprooting more than 100
civilians and forcing the reassignment of 160 military employees.
"Chugach Management Services and its parent company, Chugach Alaska Corp., have won a
vast contract at the south Tampa base, spanning 10 years and costing $500 million if all
options are exercised, said Col. Bradford E. Ward.
"Beginning Nov. 1, Chugach will maintain base facilities, utilities and runways,
perform carpentry, plumbing, grounds and road work, jobs done by the 6th Civil Engineer
Squadron - longtime government workers and members of American Federation of Government
Employees Local 153.
"A few civilian employees face possible layoffs; others are being offered early
retirement or different federal or Chugach jobs, and 160 military personnel are being
transferred [due to the transfer of job responsibilities to the preferred minority company
"The way Chugach won the lucrative contract has some civilian employees riled.
"As what federal law calls a majority Native American-owned business, Chugach
benefited from a federal law allowing direct conversion to a private indigenous American
contractor, bypassing the lengthy, traditional bid process. And Chugach has used this law
to secure other multimillion-dollar federal contracts.
"The direct conversion at MacDill shut out 23 other private companies, including
other minority and women-owned businesses, that expressed interest in bidding. It
also blocked the base's civilian employees and their union from making a case that they
could run the most efficient operation. That's created a lot of animosity toward the
company." (Tampa Tribune 09/20/99 by Jacqueline Soteropoulos)
[former link **http://www.tampatrib.com/fr092003.htm]
END Military: Older News about Reverse