RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 99-00021
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His retirement date be established to reflect 30 years for retired
purposes.
2. He be provided the difference between his retirement pay and active
duty pay and allowances from September 1992 and June 1994.
3. His retired pay be based on 30 years of service vice 28 years and 2
months.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He has always believed that the January 1992 Selective Early Retirement
Board (SERB) was unfair, giving certain minority and female officers
special consideration. The class action suit, as reported in the 14
September 1998 Air Force Times, confirmed his believe of unfair treatment.
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 1 June 1964, applicant was commission a second lieutenant and was
progressively promoted to the grade of colonel on 1 May 1985.
He was considered and selected for early retirement by the Fiscal Year 1992
(FY92) SERB. The Secretary of the Air Force approved and signed the list
of selected officers on 11 February 1992.
On 31 August 1992, applicant was relieved from extended active duty and on
1 September 1992, retired in the grade of colonel with 28 years, 1 month
and 4 days 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 SERB on 1 September 1992. They
defer to AFPC/JA for a legal advisory 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,
USAF/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 29 December 1998 (he indicates
his date of discovery was October 1998). Applicant’s only explanation is
that the “ruling on the class action suit was not completed until 1998, and
the results were published in the Air Force Times.” 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 October 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 discharge.
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 forgone that opportunity. If not, applicant has
had sufficient opportunity by himself 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 HQ USAF/JAG
states “of the 2,086 colonels under consideration by the SERB...none of the
females were selected for early retirement.” He believes this raises an
issue that either all females were in the top 70 percent of the colonels
considered or there was some other factor which enhanced their opportunity
to be continued.
The SERB’s Charge states “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.” This Charge, however, contradicts itself by apparently giving
extra consideration to female and minority officers. He believes a case
could be made that all officers considered achieved the rank of colonel and
that suggests that past individual and/or social issues had not placed them
at a disadvantage during their careers.
In the last sentence of the Charge, “The board shall prepare...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 he believes it is clear what the board was expected to do.
The HQ USAF/JAG cites his only evidence as The Air Force Times article.
The article outlines in detail and provides sufficient evidence why the
suit was brought. To reiterate that evidence would only be a duplication
of information already available. Additionally, disapproval is recommended
because he failed to file his appeal in a timely manner and he was remiss
for not seeking some heretofore unknown reason to support his believe that
something must have been wrong with the selection process.
He was disappointed to learn that the Air Force would include a Charge to
the SERB such as the one in question. After learning of its existence, he
began the filing process. He notes that Block 11a on the DD Form 149 asks
for the date of discovery and not the date of the error which is accurately
reflected on his DD Form 149. Using the rationale stated in the opinion,
he believes a large number of appeals could be denied if personnel were
held to a date of three years following the commission of an error as
compared to its discovery. The interests of justice could be jeopardized
if this rigid interpretation were applied.
He did not read in the opinion where the HQ USAF/JAG asserted an inaccuracy
in The Air Force Times article existed. The article indicated that
minority officers fared better than the board norm. It appears that the
opinion tries to defend the legitimacy of the Charge to the SERB, and it
goes on to state that “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....” He would ask the
Board to consider substituting 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. If such a Charge were to be made public,
he can only imagine the resulting reaction to such wording.
The HQ USAF/JAG also states “it would be inappropriate for the Board to
draw any inferences from the Baker settlement.” If strong legal grounds
supported the Air Force position, he does not believe the Air Force would
have corrected the 83 records in question and made the monetary settlement
that it did. It appears the Air Force (and the Board) should agree to
equal treatment for the other selectees who were considered unfairly. A
person should not have to seek legal recourse through the courts to resolve
what he believes to be an obvious inequity. It is for this reason that the
Air Force members are afforded the opportunity to appeal correction(s) of
their military records.
With regard to the HQ AFPC/DPPRR opinion, it recommends that the
application be denied; however, “if the AFBCMR decides that an injustice or
error occurred, in order to meet the applicant’s request, his military
records would need to be changed to show that he was not selected for
involuntary retirement...and that a voluntary retirement request of 1 June
1994 was submitted, approved...and effected on that date.” The stated
reason for disapproval is that no provision of law would allow extension of
a retirement date established when selected by a SERB. Since an
administrative correction of records can correct records to fix an error or
injustice, he feels this is the appropriate action for his situation.
In conclusion, he believes that the two advisory opinions rendered by HQ
USAF/JAG and HQ AFPC/DPPRR do not justify a recommendation of disapproval.
The Office of the Judge Advocate General presents evidence which supports
his position in the letter and the HQ AFPC/DPPRR has the right approach in
their opinion.
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.
3. The applicant's case is adequately documented and it has not been
shown that a personal appearance with or without counsel will materially
add to our understanding of the issue(s) involved. Therefore, the request
for a hearing is not favorably considered.
_________________________________________________________________
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 14 October 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 29 Dec 98, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPRR, dated 1 Mar 99.
Exhibit D. Letter, USAF/JAG, dated 1 Apr 99.
Exhibit E. Letter, AFBCMR, dated 12 Apr 99.
Exhibit F. Applicant's response, dated 29 Jun 99.
THOMAS S. MARKIEWICZ
Panel Chairman
AF | BCMR | CY1999 | BC-1999-00021
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. The HQ USAF/JAG also states “it would be inappropriate for the Board to draw any inferences from the Baker settlement.” If strong legal grounds supported the Air Force position, he does not believe the Air Force would have corrected the 83 records in question and made the monetary settlement that it did. With...
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. Applicant explains that when he was forced to retire in 1992, the Air Force “provided no information on the SERB board. No one in the Air Force has disputed the fact that the Air Force provided improper instructions to the SERB.
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. In regard to the merits of the applicant’s requests, AF/JAG states that first, they recommend the application be denied as untimely. 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...
Applicant explains that he was unaware of the problem with the conduct of the SERB, and the Air Force’s settlement in the Baker case until reading about it in the 14 September 1998 Air Force Times article. 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. A complete copy of their evaluation is attached at Exhibit...
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. Applicant explains that when he was forced to retire in 1992, the Air Force “provided no information on the SERB board. 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...
_________________________________________________________________ APPLICANT CONTENDS THAT: Counsel states the applicant was an officer who was illegally and improperly selected for early retirement by a board which was unconstitutionally instructed by the Secretary of the Air Force. In every case where an officer requested this, it was done. A complete copy of their evaluation is attached at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF...
_________________________________________________________________ APPLICANT CONTENDS THAT: The applicant’s counsel states that the applicant was an officer who was illegally and improperly selected for early retirement by a board which was unconstitutionally instructed by the Secretary of the Air Force. In every case where an officer requested this, it was done. Because the procedures involved in a SERB required both panels to review all of the records which were being recommended...
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. 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. Because the procedures involved in a SERB required both panels to review all of the records which were being...
_________________________________________________________________ APPLICANT CONTENDS THAT: The applicant’s counsel states that the applicant was an officer who was illegally and improperly selected for early retirement by a board which was unconstitutionally instructed by the Secretary of the Air Force. In every case where an officer requested this, it was done. Because the procedures involved in a SERB required both panels to review all of the records which were being recommended...
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. Thus, the fact applicant’s DD 214 was coded as a voluntary retirement had no effect on the applicant litigating his case before the Court of Federal Claims or on his not being contacted by Mr. Steinberg about possible litigation against the Air Force. Because the procedures involved in a...