RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03036
            INDEX CODE: 136.01

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His  retirement  date  be  changed  to  1  May  1996  to  reflect  30  years
commissioned service and his pay be adjusted accordingly.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He elected to retire not because he had to or wanted  to,  but  to  preclude
the possibility of suffering  the  humiliation  of  being  selected  by  the
Selective Early Retirement Board (SERB).  As a result  of  the  out-of-court
settlement by the Air Force with the colonels forced out by the Fiscal  Year
1992 (FY92) SERB, he believes that he should be  afforded  the  same  record
adjustment and adjustment  of  his  retirement  date  to  reflect  30  years
commissioned service.  If back pay is also paid, then he  believes  that  he
is entitled to that as well.

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 11 May 1967,  applicant  was  commission  a  second  lieutenant  and  was
progressively promoted to the grade of colonel on 1 May 1987.

On 14 June 1991, the applicant voluntarily  applied  for  retirement  to  be
effective 1 May 1992.

On 30 April 1992, applicant was relieved from extended active duty and on  1
May 1992, retired in the grade of colonel with 26 years and 29  days  active
service.

The FY92 SERB conducted on 6 January 1992, was first announced to the  field
and to the members meeting eligibility criteria in early September 1991.

The applicant was a line colonel on the active duty list with more than  two
years time in grade, whose name was not on  a  promotion  list.   Therefore,
the applicant was correctly identified as SERB-eligible in  accordance  with
Title 10, USC, Section 638.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Retirements Branch, Directorate of Personnel Program  Management,
AFPC/DPPRR, reviewed the application and  states  that  prior  to  the  FY92
National Defense Authorization Act (NDAA), all officers in  the  same  grade
and competitive category falling under the SERB  eligibility  criteria  were
required by law to meet the SERB, regardless of the fact that they may  have
had a pending voluntary or mandatory retirement.  This requirement had  been
a major concern among both SERB eligibles and officials  managing  the  SERB
since initial use of the SERB provisions and proposed legislation  had  been
submitted in this regard.  This provision of  law  was  indeed  changed  and
effective in Section 503 of the FY92 NDAA; however, that specific  NDAA  was
not passed until 5 December 1991 and  the  FY92  SERB  was  conducted  on  6
January 1992.  Upon enactment of the FY92 NDAA they  dispatched  a  message,
on 9 December 1991, that advised of the passage of the act as  well  as  the
new available option of applying for voluntary retirement  to  be  effective
no later than 1 January 1993.   On  16  December  1991,  they  dispatched  a
follow-up message that expanded the retirement application window for  SERB-
eligible officers.  This message advised that as  an  exception  to  policy,
they would allow SERB-eligible  officers  to  apply  for  retirement  to  be
effective no later than  1  February  1993.   Additionally,  these  messages
allowed for retirement applications to be submitted anytime from receipt  of
the message until 2 January 1992.

This new law specifically excluded officers from consideration by  the  SERB
who had been approved for voluntary retirement under  10  USC  8911  or  who
were to be involuntarily retired under  any  provision  of  law  during  the
fiscal year in  which  the  selection  board  was  convened  or  during  the
following fiscal year.  The FY92 Colonel/Lieutenant Colonel  SERB  was  held
in January 1992; therefore, officers with approved voluntary retirements  or
involuntary  retirement  dates  during  FY92  or  FY93  were  excluded  from
consideration.

Applicant  voluntarily  applied  for  retirement  on  14 June  1991  to   be
effective 1 May 1992.  At the time the FY92 SERB was first announced to  the
field (in early  September  1991)  the  law  did  not  permit  exclusion  of
eligibility of officers with approved
retirements from consideration by  SERBs;  therefore,  at  that  time,  even
though  applicant  had  an  approved  retirement,  he  met  the  eligibility
requirements to be considered by SERB for early  retirement.   Upon  passage
of the FY92 NDAA in December 1991, applicants  who  had  approved  voluntary
retirements no longer met eligibility requirements for  SERB  consideration.
At that time, since applicant already had an approved  retirement  prior  to
the passage of the NDAA, he no longer was eligible for consideration.   They
defer to the AFPC/JA for a legal advisory  pertaining  to  the  request  for
corrective action similar to that received by the plaintiffs  in  the  Baker
settlement.

The applicant voluntarily applied for retirement as early as  June  1991  to
be effective 1 May 1992.  At the time of his submission  of  his  retirement
application, there had been  no  decision  or  announcement  concerning  the
future FY92 SERB.  Additionally, at  the  time  of  his  submission  of  his
retirement  application,  the  law  did  not  permit  exclusion  from   SERB
consideration of eligible members due to approved voluntary  retirements  or
involuntary retirements.  The applicant has not  proven  any  injustices  or
irregularities  in  the  processing  of  his   voluntary   application   for
retirement.  Additionally, applicant was  not  considered  or  selected  for
retirement by the FY92 SERB which convened  in  January  1992  but,  rather,
applied himself for voluntary retirement.

A complete copy of the evaluation, with attachments, 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  in  August  1991,
the Secretary of the Air Force approved a  plan  to  reduce  the  number  of
colonels  on  active  duty  as  part  of  a  congressionally-directed  force
reduction that projected the Air  Force  to  shrink  in  size  from  486,800
active duty personnel to 437,200 by FY95.  In  order  to  comply  with  this
force reduction, the Secretary determined that it was necessary  to  convene
a Colonel SERB to reduce the number of  active  duty  colonels.   To  ensure
that junior officers would not be impacted disproportionately by  the  force
reduction, the Air Force was  required  to  reduce  the  retirement-eligible
population of officers to FY95 levels before forcing other  officers  to  be
involuntarily separated.  The  Secretary  determined  that  the  SERB  would
select 30 percent of eligible colonels for involuntary retirement  in  order
to meet reduction-in-force requirements.

In September 1991, the Air Force sent a message to all commands that a  SERB
would convene on 6 January 1992.  The Air Force also announced that (1)  the
SERB would consider for early retirement all  colonels  who  had  served  at
least two years of active duty as of 31 October 1991, and whose  names  were
not on a list of officers recommended  for  promotion;  and  (2)  a  certain
number of
colonels, not to exceed 30 percent of the total potential pool  of  eligible
officers, would be retired as a result of the SERB process.  On  10  October
1991, Deputy Chief of Staff for Personnel, General Billy J.  Boles,  advised
Air Force personnel  worldwide  of  the  SERB  and  noted:  “Legislation  is
pending that would make officers with a mandatory  or  voluntary  retirement
in FY92 ineligible for the SERB.”  On 8 November 1991, the Commander of  the
Air Force Military Personnel Center, sent an informational  package  to  all
officers eligible for the SERB, explaining the  procedures  the  SERB  would
follow along with six pages of commonly asked questions and answers.   On  5
December 1991, Congress, through  Title  V,  Para  503(a)  of  the  National
Defense Authorization Act for Fiscal Years  1992  and  1993,  excluded  from
consideration by the SERB any officer “who has been approved  for  voluntary
retirement under section 3911, 6323, or 8911 of this title, or who is to  be
involuntarily retired under any provision of law during the fiscal  year  in
which the selection board is convened or during the following fiscal  year.”
 On 6 January 1992, the 1992 Colonel SERB  convened  at  Randolph  AFB,  TX.
The SERB selected 610, or 29.2 percent, of  the  2,086  colonels  considered
for early retirement.

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  24  October  1998.   Applicant
explains that it wasn’t until the 14 September 1998 Air Force Times  article
that he became aware of the unfair instructions given to the  SERB  and  the
subsequent  out-of-court  settlement  and   record   and   retirement   date
adjustments allowed.  Even assuming, arguendo, that the  instructions  given
the SERB somehow caused an injustice to  the  applicant,  the  fact  is  the
instructions have been a matter of public record since the  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 instructions were unfair.  This,  in  itself,  is  neither  evidence  of
unfairness nor an excuse for applicant’s untimeliness.  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  October  1998.
What is apparent is that applicant failed to exercise the due diligence  the
law requires.

In addition to filing an untimely claim, applicant  has  failed  to  provide
any evidence of a material error or  injustice  upon  which  relief  can  be
granted.  Before the  Board  reaches  the  question  of  material  error  or
injustice, there are three threshold issues that the  Board  would  have  to
find that the applicant satisfied in order for  the  applicant  to  prevail.
First, was it reasonable in June 1991 for the applicant to  believe  that  a
SERB would be held  at  a  later  date  that  might  select  him  for  early
retirement unless he elected to voluntarily retire?   Second,  if  applicant
had known in June 1991 that this future SERB would include allegedly  unfair
instructions, would he have elected  to  take  his  chances  with  the  SERB
instead of retiring?  Finally, had applicant met the  SERB,  would  he  have
been selected to retire early?

With  respect  to  this  first  issue,  applicant  indicates  that  in  late
1991/early  1992  he  elected  to  retire  specifically  to   preclude   the
possibility of suffering the humiliation of being SERB’d.   Applicant  fails
to mention that he actually made his election to retire in June 1991,  about
two months before the Secretary determined that a SERB would  be  necessary;
three months before the SERB was announced; and six months  before  Congress
approved legislation excluding officers with  established  retirement  dates
from SERB consideration.  In other words, applicant  would  have  the  Board
believe that he elected to retire in anticipation of a  SERB  that  had  not
been approved or  announced,  and  if  it  had  been  approved,  could  have
selected him anyway because  under  the  law  that  existed  in  June  1991,
officers  with  approved  retirements  were  still  included  in  the   SERB
eligibility pool.  With respect to this issue, they note that applicant  has
not provided any evidence as to why he believed that  volunteering  in  June
1991 to retire in May 1992 would preclude  his  being  selected  by  a  SERB
(that didn’t yet exist), particularly since it wasn’t  until  December  1991
that Congress changed the law that would preclude him from being  considered
by a SERB.  Indeed, since a May 1992 retirement date  enabled  applicant  to
reach the 26 year point for pay purposes, his last longevity pay  raise,  it
would  appear  that  avoiding  a  SERB  was   not   the   applicant’s   sole
consideration in electing the timing of his retirement.

The  second  threshold  issue  requires  the  Board  to  determine   whether
applicant would have elected not to retire had he known in June 1991 that  a
yet-to-be  approved  SERB  would  contain  allegedly  unfair   instructions.
Applicant fails to satisfy this threshold issue also.   In  fact,  applicant
doesn’t even assert that if he had  it  to  do  over  again  he  would  have
elected to meet
this sometime-in-the-future SERB instead of retiring.  It  is  difficult  to
understand how the applicant could suffer an error or injustice from a  SERB
that he never met.

If applicant had elected  to  meet  the  SERB,  then  the  third  and  final
threshold issue is whether the SERB would have selected applicant to  retire
early.  This is critical because no injustice  could  have  occurred  unless
the SERB would have actually selected applicant to retire early.   In  their
opinion, the Board would have to engage in pure speculation  to  attempt  to
determine whether the FY92 SERB would  have  selected  applicant  to  retire
early.  Applicant has not provided any evidence to indicate why he  believes
a SERB would have selected him.  The fact is there were 1,476  colonels  who
were not selected by the SERB.

These  issues  illustrate  why  it  is  difficult  to  draw  any  connection
whatsoever between the alleged unfair instructions  to  the  FY92  SERB  and
applicant’s decision in  June  1991  to  voluntarily  retire.   Perhaps,  if
applicant had submitted his retirement papers in December  1991,  after  the
SERB was announced and the new  law  passed  that  excluded  those  who  had
volunteered to retire, applicant might be able  to  establish  some  tenuous
connection.  But, this application is  completely  void  of  any  connection
between alleged unfair instructions at the SERB and applicant’s decision  to
retire.

Even more tenuous is the relevance between applicant’s  decision  to  retire
and the out-of-court settlement reported in the Air Force  Times  concerning
83 colonels who were in fact selected by the  SERB.   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.  Accordingly, it would be inappropriate for the Board  to  draw
any inferences from this settlement  and  apply  it  to  the  applicant  who
wasn’t selected by the SERB, let alone apply it to one who didn’t even  meet
the SERB.

In summary, AF/JAG states that they recommend  the  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.  In  addition,  applicant
has failed to establish how  the  allegedly  unfair  SERB  instructions  are
connected to his
decision to retire and  caused  him  an  injustice.   Likewise,  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 by the  Federal  Rules  of  Evidence,  why  adverse  consequences
should not be attached to the out-of-court settlement.  Based on the  facts,
there is no connection between applicant’s decision to retire  in  May  1992
and the allegedly unfair instructions given to the FY92 SERB.  Nor is  there
evidence that applicant would have been selected by  the  SERB  had  he  not
elected to retire.  In short, applicant’s decision to  retire  in  May  1992
appears to have been  voluntary  and  should  not  constitute  an  error  or
injustice upon which relief should be granted.

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

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

Copies of the Air Force evaluations were forwarded to the  applicant  on  12
April 1999, for review and response within 30 days.  As  of  this  date,  no
response has been received by this office.

_________________________________________________________________

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 24 Oct 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRR, dated 2 Feb 99, w/atchs.
   Exhibit D.  Letter, USAF/JAG, dated 17 Mar 99.
   Exhibit E.  Letter, AFBCMR, dated 12 Apr 99.





                                   THOMAS S. MARKIEWICZ
                                   Panel Chairman