RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 99-00041
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His retirement date be changed from 31 August 1992 to 30 November
1993.
2. He be reimbursed for the difference between active duty pay and
retired pay for the period from 31 August 1992 to 30 November 1993.
3. His retirement multiplier be adjusted to reflect 30 years of service
(75%) for future retirement pay, and reimbursement for reduced retirement
pay received during the period from 30 November 1993 to the present.
4. In the alternative, he be given the same settlement as agreed to by
the Air Force and plaintiffs in the Baker litigation, inasmuch as he is
identically situated.
_________________________________________________________________
APPLICANT CONTENDS THAT:
On 31 August 1998 the Air Force reached an “out of court” settlement with
83 retired white male colonels who had been selected for early retirement
by the Fiscal Year 1992 (FY92) Selective Early Retirement Board (SERB).
The settlement was in response to a “reverse discrimination” suit, known as
the Baker case, which was brought against the Air Force alleging that the
FY92 SERB was unfair because women and minorities were given special
consideration. His situation is the same as the plaintiffs in the suit,
however, because he was unaware of the problem with the conduct of the
Board and the subsequent litigation, he was not a signatory to the legal
action or the settlement. It would be patently unfair for these 83
colonels to have their records corrected while his remained uncorrected.
Sheila Cheston, General Counsel to the Air Force, was quoted in the Air
Force Times as stating that the settlement “was the appropriate way to
resolve this matter.” He agrees – and he expects his records to be
similarly corrected. In the interests of fairness and justice, he
respectfully requests that his situation be favorably resolved, as it was
for the plaintiffs in the Baker suit.
In support of the appeal, applicant submits AF Form 77, Supplemental
Evaluation Sheet for CY90 SERB, CY90 SERB results, AF Form 709, Promotion
Recommendation, AF Form 3538, Retention Recommendation, AF Form 707A,
Officer Performance Report, Commander in Chief letter, dated 15 February
1992, DAF Special Order AL-001581, DD Form 214, and three Air Force Times
articles.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 5 November 1963, applicant was commission a second lieutenant and was
progressively promoted to the grade of colonel on 1 July 1984.
He was considered and selected for early retirement by the FY92 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.
On 31 August 1992, applicant was relieved from extended active duty and on
1 September 1992, retired in the grade of colonel with 29 years, and 22
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 the SERB on 1 September 1992.
They defer to AF/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,
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 applicant submits three Air Force Times articles as evidence to support
his request. The first article, dated 14 September 1998, reports an out-of-
court settlement in Baker v. United States, 34 Fed.C1. 645 (1995), which
involved 83 colonels who also selected by the FY92 SERB. The second
article, also dated 14 September 1998, speculates on the impact of the
Baker settlement on future Air Force promotion boards and reports that new
language was inserted in the instructions to a recent lieutenant colonel’s
board. The third article, dated 23 November 1998, reports that a 25 June
1990 memo expressed concerns about the proposed instructions to be used in
promotion boards. 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 1 January 1999. 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. 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. Although the applicant maintains that he was unaware of the
Baker litigation and acknowledges that he was not a signatory to the legal
action and settlement, the fact remains that the 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.
Applicant’s reference to two issues raised in the Air Force Times articles
also merit discussion. First, the Air Force Times is correct that this
office expressed concerns in 990 over a proposed change to the Charge to be
given future selection boards. However, what the Air Force Times did not
mention was that those concerns were taken into account and as a result,
the Charge was modified. The Judge Advocate General and their office then
concurred with Charge as modified, which was the Charge used in the FY92
SERB. Likewise, the Air Force Times correctly reported that new language
has been inserted into the Charge. However, they remind the Board that the
Charge is frequently reviewed and consequently, is constantly being
refined. Thus, the fact new language has been added to the Charge should
not be viewed by the Board as evidence that 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 first (and
apparently primary) reason given by HQ USAF/JAG for recommending denial of
his request is that his request is untimely. Air Force policy requires
requests to be submitted within three years after the individual discovers,
or could have reasonably discovered, the error or injustice. His request
for correction of records was submitted within four months of his becoming
aware of the error or injustice – I acted very promptly. To suggest that
he somehow could have or should have known about this problem earlier is
simply not realistic or fair. To borrow a phrase from the Chief, General
Law Division’s response, expecting him to research something that he had no
way of being aware of in the first place requires an “enormous leap in
logic.” He voluntarily retired early and got on with his life. How was he
to know the SERB process back in 1992 was flawed – mental telepathy?
Timeliness is not the issue here. Even if a request is judged untimely,
the Corrections Board has full authority to waive the three-year limitation
in the interests of justice. That is what he is asking the Board to do –
serve the interests of fairness and justice.
The second main point made by HQ USAF/JAG is that the Board should not draw
any inferences from the out-of-court settlement in the Baker case because
it does not “establish precedent.” He fully understands that out-of-court
settlements do not establish legal precedent, in fact that is often why
they are made. By settling the suit, the Air Force avoided the very real
potential of a finding against them, and also avoided having to acknowledge
guilt or error. He does not state that the Baker case established
precedent. However, he does believe that the settlement is “instructive”,
and that knowledge of a settlement favorable to the plaintiffs should be of
value to the Board in drawing its own conclusions. The Air Force had its
reasons for settling out-of-court. However, you can be certain of one
thing – they did not settle because they were confident they would win.
Apparently the Air Force chose not to defend the key issue of fairness and
justice in their response because it is simply indefensible. The bottom
line and the facts remain clear: (1) 83 retired Air Force colonels have
been granted a favorable out-of-court settlement by the Air Force, and (2)
he is identically situated and he is entitled to the same favorable
resolution extended to his peers. Failure to do so would be patently
unfair and unjust.
Applicant's complete response 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 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 1 Jan 99, 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 28 Apr 99.
Exhibit F. Applicant’s Response, dated 8 May 99
THOMAS S. MARKIEWICZ
Panel Chairman
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: 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 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.
_________________________________________________________________ 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...
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...
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...
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. 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...
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...