RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02794

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His retirement date be established as 1 July 1994.

2.    He be provided the difference between his retirement  pay  and  active
duty pay and allowances from 1 January 1993 to 1 July 1994.

3.    His retired pay be adjusted to reflect a 1  July  1994  retirement  to
include any differences between 1 January 1993 to  present  as  was  granted
the 83 colonels in the Air Force Times article.

4.    His future retired pay be continued as though his retirement date  was
1 July 1994 as granted to the 83 colonels in the Air Force Times article.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His performance potential for further  service  was  not  fairly  considered
when compared to all of his peers.  As a result he was  selected  for  early
retirement when others, who should have been selected  ahead  of  him,  were
permitted to continue based on their sex or minority status.

In support of the appeal, applicant submits a copy of  a  14 September  1998
article from the Air Force Times.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 28 February 1967, applicant was commission a second  lieutenant  and  was
progressively promoted to the grade of colonel on 1 September 1988.

He was considered and selected for early retirement by the Fiscal Year  1992
(FY92) Selective Early Retirement Board (SERB).  The
Secretary of the  Air  Force  approved  and  signed  the  list  of  selected
officers on 11 February 1992.  Applicant’s  mandatory  retirement  date  was
established as l September 1992.

During his retirement physical, applicant was  diagnosed  as  having  severe
blocked arteries to his heart.  On 20 May  1992,  applicant  was  placed  on
medical hold.  On 17 December 1992, he was released from medical hold.

On 31 December 1992, applicant was relieved from extended  active  duty  and
on 1 January 1993, retired in the grade of colonel with 28 years,  9  months
and 1 day of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Retirements Branch, Directorate of Personnel Program  Management,
AFPC/DPPRR,  reviewed  the  application  and  states  that   the   applicant
mandatorily retired under the provisions of the  SERB  on  1  January  1993.
They defer to SAF/GCM for comments and  recommendations  pertaining  to  the
request for corrective action similar to that received by the plaintiffs  in
the Baker settlement.  There are no  provisions  of  law  that  would  allow
extension  of  a  retirement  date  established  by  selection   for   early
retirement under  SERB  laws.   Therefore,  they  recommend  denial  of  the
requested relief.

A complete copy of the evaluation is attached at Exhibit C.

The Chief, General Law Division,  Office  of  The  Judge  Advocate  General,
AF/JAG, also reviewed this application and indicates that the applicant  was
selected for early retirement by the FY92 Colonel SERB.  The  SERB  selected
610,  or  29.2  percent,  of  the  2,086  colonels  considered   for   early
retirement.  Overall, 93 of the 2,086 colonels under  consideration  by  the
SERB were members of a minority group and/or women, of  which  28,  or  30.1
percent, were selected for early retirement.  None of  the  female  officers
considered by the board were chosen for early retirement.

The only  evidence  applicant  submits  to  support  his  request  is  a  14
September 1998 Air Force Times article reporting an out-of-court  settlement
in Baker v. United  States,  34  Fed.Cl.  645,  (1995),  which  involved  83
colonels who were also selected by the FY92 SERB.  The basis  of  the  Baker
complaint was that the Secretarial Memorandum of  Instruction  (MOI)  Charge
to the SERB, on its face  and  as  applied  by  the  members  of  the  SERB,
violated their constitutional right  to  equal  protection  of  law  because
women and minority  colonels  were  given  a  preference  in  the  selection
process  over  male,  nonminority  colonels,  with  the  result   that   the
plaintiffs were forced to retire in the place of those  to  whom  preference
was given on account of race and/or gender.  Baker  v.  United  States,  127
F.3d 1081, 1082 (Fed. Cir.
1997). The language in the Charge reads as follows:

    Your evaluation of minority and women officers must clearly afford them
    fair and equitable consideration.  Equal opportunity for  all  officers
    is an essential element of our selection system.  In your evaluation of
    the records of minority officers and  women  officers,  you  should  be
    particularly sensitive to the  possibility  that  past  individual  and
    societal attitudes, and  in  some  instances  utilization  policies  or
    practices, may have placed these officers  at  a  disadvantage  from  a
    total career perspective.  The board shall prepare for  review  by  the
    Secretary and the Chief of Staff,  a  report  of  minority  and  female
    officer selections as compared to the selection rates for all  officers
    considered by the board.

In regard to the merits of the  applicant’s  requests,  AF/JAG  states  that
first, they recommend the application be denied as  untimely.   By  law  and
regulation, an application must be filed within three years after  an  error
or injustice  is  discovered,  or  with  due  diligence,  should  have  been
discovered.  An application filed late is untimely and should be  denied  by
the Board on that basis unless it should  be  excused  in  the  interest  of
justice.  Although the Board can excuse an untimely filing in  the  interest
of justice, the burden is on the applicant to establish why it would  be  in
the interest of justice to excuse the late application.  In this  case,  the
error alleged by the applicant  occurred  during  the  FY92  SERB,  yet  the
applicant  did  not  file  his  application   until   30   September   1998.
Applicant’s explanation for this is that while he always believed  that  the
board did not fairly evaluate his records compared to all of his  peers,  he
had no evidence to support that belief until he  read  an  Air  Force  Times
article discussing the SERB.  In reality,  the  Charge  that  the  applicant
asserts is discriminatory has been a  matter  of  public  record  since  his
board was held in 1992.  The applicant’s  “new  evidence”  is  nothing  more
than his claim to having read an article in the Air  Force  Times  in  which
others have alleged the Charge was unlawfully discriminatory.  This, in  and
of itself, is neither evidence of  discrimination  nor  an  excuse  for  not
complaining of the language that  has  existed  since  1992.   In  order  to
excuse a delay, the applicant should have to show that  the  error  was  not
discoverable, or that even after due  diligence,  it  could  not  have  been
discovered.  Clearly, the issue about which  the  applicant  complains  (the
language of the Charge) was as discoverable  at  the  time  it  occurred  in
1992, as it was in September 1998.   What  is  apparent  is  that  applicant
failed to exercise the due diligence the law requires and relied instead  on
the actions of others (most notably the Air Force Times) to provide a  basis
and theory for recovery long after a reasonable period for pursuing a  claim
had passed.

In addition to being untimely, applicant has failed to provide any  evidence
of a material error or injustice upon  which  relief  can  be  granted.   As
noted in the Air Force Times article, the Air
Force defended the Baker case because it believed  the  Charge  was  proper.
Indeed, the Air Force’s position was that the Charge  did  not  establish  a
goal or quota or otherwise provide an incentive to treat officers  unequally
based upon their race or gender, nor did the  Charge  direct  the  board  to
make selections upon the basis of race or gender.  As the trial court  wrote
in Baker:

    “The Charge, however, did not mandate that members of the SERB consider
    race [or gender] in discharge decisions.  The Charge did not  establish
    any quota or goal for the percentage of minorities  to  be  discharged.
    The Charge did not include race [or gender] in its list of factors that
    SERB members should  consider  in  making  separation  decisions.   The
    Charge merely cautioned members of the  SERB  to  be  aware  that  some
    minority officers may have experienced different  career  opportunities
    or may have been affected,  in  some  way,  by  discrimination.   In  a
    process which the Charge itself describes as subjective,  the  language
    at issue merely asked members of the SERB to keep in mind, as one of  a
    host of subjective considerations, the possibility that  some  minority
    officers  might  have  undergone  different  experiences.”   Baker,  34
    Fed.Cl. at 656.

Lawsuits are settled for a myriad of reasons.   The  settlement  of  a  case
should not be viewed as an admission of  guilt  or  liability,  but  instead
viewed as a reflection of the parties’ assessment of the relative  risks  of
litigation balanced against the  potential  costs  of  pursuing  litigation.
Public policy strongly favors the nonjudicial settlement  of  disputes,  for
settlement reduces costs for all parties,  conserves  judicial  and  private
resources and promotes good will.  In furtherance  of  this  public  policy,
Federal Rule of Evidence 408 provides that evidence of a settlement  is  not
admissible “to prove liability  for  or  invalidity  of  the  claim  or  its
amount.”  To do otherwise would impede, rather than  encourage,  efforts  to
seek out-of-court settlements.

For this applicant to  prevail,  the  Board  must,  of  necessity,  draw  an
adverse inference (that the Federal Rules of Evidence would  preclude)  from
the Baker settlement because this is the only  evidence  the  applicant  has
provided.  Thus, the Board would have to reach the conclusion that  the  Air
Force  settled  the  Baker  case  because  the   Charge   was   flawed   and
consequently, applicant’s selection  for  early  retirement  constituted  an
error or injustice.  They point out the enormous leap in logic,  unsupported
by any evidence, that this involves.  Consequently,  in  their  opinion,  it
would be inappropriate for the Board to draw any inferences from  the  Baker
settlement.  It is important to note that the Court of Appeals in the  Baker
case did not make any findings on the merits of the  plaintiffs’  case.   It
only  decided  that  there  was  insufficient  evidence   to   support   the
government’s Motion for Summary Judgment and  thus  remanded  the  case  for
trial.  As reported in the Air Force Times, in settling out  of  court,  the
Air Force did not concede that there was anything wrong with  its  selection
procedures.  Indeed, as the then Air Force General  Counsel  explained,  the
settlement “was the appropriate way to resolve this matter.  The  Air  Force
leadership continues to have great confidence in our [board] processes.”

In essence, applicant is asking the  Board  to  include  him  in  the  Baker
settlement and grant him the same or similar relief as reported in  the  Air
Force Times.  If the applicant was among the 200  colonels  referred  to  in
the Air Force Times article, who were given  the  opportunity  to  join  the
Baker litigation, he has foregone that opportunity.  If not,  applicant  has
had sufficient opportunity and motive (he states, “I  always  believed  that
the board did not fairly evaluate my records...”) to pursue  a  claim.   For
the public policy reasons discussed above, they  believe  the  Board  should
not permit an out-of-court settlement agreement to be used as  evidence  the
applicant was not fairly considered by the FY92 SERB.

In summary, AF/JAG states that they recommend that  applicant’s  request  be
denied.  First,  applicant’s  request  is  untimely  and  should  be  denied
because he has provided nothing to establish that it would be  in  the  best
interest of justice to excuse  the  untimely  filing.   Second,  applicant’s
reliance on an out-of-court settlement agreement reported in the  Air  Force
Times does not constitute evidence of a material  error  or  injustice  upon
which relief can be granted.  There are strong  public  policy  reasons,  as
recognized  in the Federal Rules of  Evidence,  why  the  Board  should  not
attach any adverse consequences to the Baker settlement.  In their  opinion,
the Board should recognize the policy argument.  The  fact  is,  applicant’s
selection by the FY92 SERB did not constitute an  error  or  injustice  upon
which relief should be  granted.   Consequently,  they  recommend  that  the
Board deny applicant’s request for relief as being  untimely  filed  or,  in
the alternative, because he has failed to demonstrate  the  existence  of  a
material error or injustice.

A complete copy of their evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

Applicant review the Air  Force  evaluations  and  states  that  the  AF/JAG
advisory  opinion  actually  supports  his  request  for  correction.    The
following thoughts apply:

      a.    Of 2,086 officers considered no females were selected for  early
retirement.  This raises the dilemma that all women were in the top  70%  of
the colonels considered for early retirement or, some other factor  enhanced
their opportunity for continuation.

      b.    The board’s Charge states “Equal opportunity  for  all  officers
is  an  essential  element  of  our  selection  system.”   The  Charge  thus
contradicts itself by giving extra  consideration  to  female  and  minority
officers.  A case can be made that  all  considered  achieved  the  rank  of
colonel and that in itself  suggests  that  “past  individual  and  societal
issues” had not placed them at a disadvantage during their careers.

      c.    The last sentence that “The board shall prepare  for  review  by
the Secretary and the Chief of  Staff,  a  report  of  minority  and  female
officer selections as compared to  the  selection  rates  for  all  officers
considered by the board.”  There is no mention of  merit  and  it  is  clear
what was expected of the board.

      d.    AF/JAG emphasizes the  importance  of  “rules  of  evidence”  as
reason to deny the appeal.  He contends this argument is  moot  because  the
BCMR is not governed  by  “rules  of  evidence”  but  rather  administrative
correction of an error or injustice.

His request is criticized because he only submits as evidence a copy of  the
Air Force Times article.  Please note the article outlines in detail  why  a
group  of  colonels  sued  the  Air  Force.   He  contends  that  more  than
sufficient evidence is included in the article and  reiteration  would  only
duplicate information already available.

The  AF/JAG  then  recommends  disapproval  because  his  appeal  was  filed
untimely.  It suggests that he is  remiss  because  he  did  not  seek  some
unknown reason to support his underlying belief  that  something  must  have
been wrong with the selection process.  Please  understand  that  he  never,
ever thought that the Air Force would include a Charge to the SERB  such  as
the one in question.  The moment he discovered its  existence  he  began  to
file a request to correct his records.  Block lla on the  DD  149  asks  for
the date of discovery, not the date of the error,  and  that  is  accurately
reflected  on  his  application.   Using  AF/JAG  rationale,  a  very  large
percentage of appeals would be automatically denied if applicants were  held
to a date of three years following the commission of an error as opposed  to
its  discovery.   He  believes  that  the  interests  of  justice  would  be
jeopardized if such a rigid standard were applied.

AF/JAG does not allege a single inaccuracy in the Air  Force  Times  article
which also states that minority officers fared better than the  board  norm.
Rather it attempts to defend the propriety of the Charge to  the  SERB.   It
states that the Air Force “did not establish a goal or  quota  or  otherwise
provide an  incentive  to  treat  officers  unequally  based  upon  race  or
gender...”  He respectfully asks the Board to substitute  the  words  “white
males” in lieu of “minority and women officers” and  question  whether  that
would or should be construed as advantageous to white males.  One  can  only
imagine the reaction if such a Charge became public knowledge.

Finally, AF/JAG states that no inferences should be  drawn  from  the  Baker
settlement.  Maybe so, but he cannot believe  the  Air  Force  corrected  83
records and requested an additional $30,000 settlement to each if  legal  or
moral grounds supported the Air Force position.  Clearly, the Air Force  was
in a legally indefensible position and opted not to go to  trial.   In  this
regard, it should agree to equal treatment for the other selectees who  were
unfairly considered.  One should not be required to go to court  to  resolve
an obvious inequity.   That  is  why  Air  Force  personnel  are  given  the
opportunity to appeal for an administrative correction of military records.

AFPC/DPPRR recommends that this application be denied but continues that  if
approved, his military records should be changed to show  that  he  was  not
selected for involuntary retirement and, that a voluntary request  for  a  l
July 1994 retirement be approved.  Their reason for disapproval  is  because
no provision of law would allow extension of a retirement  date  established
when selected by  an  early  retirement  board.   Since  the  administrative
correction of records can correct records to repair an error  or  injustice,
he believes this is the correct remedy for his situation.

In addition, AFPC/DPPRR also includes a statement that prior to his  January
1993 retirement,  he  submitted  a  BCMR  application  requesting  that  his
mandatory l  January  1993  retirement  be  extended  due  to  the  personal
hardship caused by the short notice between  release  of  medical  hold  and
retirement.  He does not recall submitting such an appeal and would be  very
grateful if a copy could be furnished to refresh a fading  memory.   He  did
write a personal note to the AF/DP expressing his chagrin over the  way  his
effective date of retirement was established i.e.,  short  notice  over  the
Christmas Holidays.  He was retired, then  processed,  and  was  denied  the
dignity of even having a retirement  ceremony.   AF/DP  telephoned  him  and
expressed his regrets for the lack of sensitivity exercised in his case.   A
copy of his letter is attached for the Board’s information.

In summary, he contends  that  the  advisory  opinion  does  not  justify  a
recommendation for disapproval.  On the contrary  AF/JAG  presents  evidence
supportive of his position as discussed above.  AFPC/DPPRR has it  right  in
subparagraph b of their recommendation.

Applicant's complete response, with attachment, is attached at Exhibit F.

_________________________________________________________________

FINDINGS AND CONCLUSIONS OF THE BOARD

1.    The application was not filed within three  years  after  the  alleged
error  or  injustice  was  discovered,  or  reasonably   could   have   been
discovered, as required by Section 1552, Title 10, United  States  Code  (10
USC 1552), and  Air  Force  Instruction  36-2603.   Although  the  applicant
asserts a date of discovery which would, if correct,  make  the  application
timely, the essential facts which gave rise to the  application  were  known
to the applicant long before the asserted date of discovery.   Knowledge  of
those facts constituted the date of  discovery  and  the  beginning  of  the
three-year period for filing.  Thus the application is untimely.

2.    Paragraph b of 10 USC 1552 permits us, in our  discretion,  to  excuse
untimely filing in the interest of  justice.   We  have  carefully  reviewed
applicant's submission  and  the  entire  record,  and  we  do  not  find  a
sufficient basis to excuse the untimely filing  of  this  application.   The
applicant has not shown a plausible reason for delay in filing, and  we  are
not persuaded that the record raises issues  of  error  or  injustice  which
require resolution on the merits at this  time.   Accordingly,  we  conclude
that it would not be in the interest  of  justice  to  excuse  the  untimely
filing of the application.

_________________________________________________________________

DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest  of
justice to waive the  untimeliness.   It  is  the  decision  of  the  Board,
therefore, to reject the application as untimely.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 17 September 1999, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Panel Chairman
      Mr. Frederick R. Beaman, III, Member
      Ms. Rita S. Looney, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 30 Sept 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRR, dated 1 Dec 98.
   Exhibit D.  Letter, USAF/JAG, dated 17 Mar 99.
   Exhibit E.  Letter, AFBCMR, dated 12 Apr 99.
   Exhibit F.  Applicant's/Counsel's response, dated 24 Apr 99,
               w/atch.





                                   THOMAS S. MARKIEWICZ
                                   Panel Chairman