RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00560
            INDEX CODE: 136.01

            COUNSEL:  BARRY P. STEINBERG

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His retirement date be adjusted from 1 October 1994 to 30 June 1997.

2.    He be paid the difference between his retirement pay  and  what  would
have been his active duty pay and allowances from 1 October 1994 to  30 June
1997.

3.    His retired pay be adjusted to reflect a 30 June  1997  retirement  to
include any differences between 1 October 1994 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
30 June 1997.

_________________________________________________________________

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.    The
instructions to the Fiscal Year 1994B  (FY94B)  Selective  Early  Retirement
Board (SERB) discriminated against him on the basis of race and gender.

In support of the appeal, applicant submits a copy of  a  14 September  1998
article from the Air  Force  Times,  copy  of  the  Standard  Memorandum  of
Instructions for Selective Early Retirement Boards, copy of  a  23  November
1998 Air Force Times article, copy  of  his  DD  Form  214,  Certificate  of
Release or Discharge from Active, and Major  General  F---’s  letter,  dated
29 March 1994, with attachment.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 30 January 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 FY94B SERB.   The
Secretary of the  Air  Force  approved  and  signed  the  list  of  selected
officers on 15  March  1994.   Applicant’s  mandatory  retirement  date  was
established as l October 1994.

On 30 September 1994, applicant was relieved from extended active  duty  and
on 1 October 1994, retired in the grade of colonel with 27 years, 7  months,
and 3 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Retirements  Policies  &  Programs,  Directorate  of  Personnel  Program
Management, AFPC/DPPRRP,  reviewed  the  application  and  states  that  the
applicant was mandatorily retired under the provisions  of  the  SERB  on  1
October 1994.  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,
AF/JAG, also reviewed this application and indicates that the applicant  was
selected for early retirement by the FY94B Colonel SERB.  The SERB  selected
111, or 29.9 percent, of the 371 colonels considered for  early  retirement.
There is no information available  as  to  the  number  of  minorities/women
considered and selected by the SERB.

The principle 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.

This Charge was also given to the FY94B SERB.

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  FY94B  SERB,  yet  the
applicant did not file his application until 28 February 1999.   Applicant’s
only explanation is that while he believed that  the  SERB  did  not  fairly
evaluate his record as compared with those of his peers, he had no  evidence
to support a request for relief until he read an Air  Force  Times  article.
Applicant claims that all board proceedings had been kept secret,  but  that
in  agreeing  to  the  settlement,  the  Air  Force  gave  credence  to  the
contention that all boards presented with  exactly  the  same  “prejudicial”
instructions acted in a manner similarly prejudicial to members  of  certain
gender and race.  In reality, the  Charge  that  the  applicant  asserts  is
unfair has been a matter of public record since his board was held in  1994.
 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 1994.  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  1994,  as  it  was  in  February
1999.  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.  Even though the  applicant  was  not  a  party  to  the  Baker
litigation,  he  certainly  has  had  (and  continues  to  have)  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 FY94B 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 FY94B 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

The  applicant’s  counsel  reviewed  the  Air  Force  evaluations  and   has
submitted detailed comments.   In  summary  he  states  that  the  applicant
should receive the benefits that 83  other  officers  received  through  the
settlement, not because of the  Court  settlement,  but  rather  because  83
officers received it.  Whether they received it from  the  Correction  Board
or from a settlement or from the good graces of the  Secretary  of  the  Air
Force or just because they were lucky, is not the issue.  The point is  they
did receive it and the applicant, who is identically situated to  them,  did
not.  There are strong public policy reasons to treat all  people  similarly
situated equally.  That concept is captured in the Fifth  Amendment  to  the
United States  Constitution.   Similarly  there  are  strong  public  policy
reasons to discourage litigation.  The  advisory  opinion  in  fact  has  an
exact opposite effect on both of these policies, inasmuch as  it  encourages
litigation  and  encourages  disparate  treatment  of  officers  identically
situated.  That constitutes an  injustice  and  the  BCMR  is  empowered  to
correct injustices.  The concept of correcting an injustice is a concept  of
equity and fairness.   The  litigation  in  the  Baker  case  is  referenced
because it demonstrates a fact pattern of what happened.  What happened  was
the  Board  that  retired  the   applicant   applied   an   unconstitutional
instruction in an unconstitutional way.  The Baker  opinion,  when  read  in
the context of Adarand and numerous other Circuit Court opinions, cannot  be
read in any other fashion.  The applicant’s application is timely filed  and
the relief that he seeks is entirely fair and appropriate.

Counsel'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.  We  are  not  privy  to  the
reasons for the out-of-court settlement  concerning  the  83  colonels  that
were considered by the Fiscal Year 1992  Selective  Early  Retirement  Board
(SERB).  However, we note that the applicant was considered  by  the  Fiscal
Year 1994B (FY94B) SERB
and  there  is  no  information  available  as  to   the   the   number   of
minorities/women considered and selected by the  FY94B  SERB.   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 28 Feb 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRRP, dated 16 May 99.
   Exhibit D.  Letter, USAF/JAG, dated 11 Jun 99.
   Exhibit E.  Letter, AFBCMR, dated 12 Jul 99.
   Exhibit F.  Counsel's response, dated 18 Aug 99.





                                   THOMAS S. MARKIEWICZ
                                   Panel Chairman