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