RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00634

            COUNSEL:  None

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His retirement date be established as 1  August  1999  to  reflect  30
years of commissioned service.

2.    All of his pay be adjusted to reflect this date.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The instructions give to the Selective Early Retirement  Board  (SERB)  were
patently reverse  discrimination.   The  Secretary  of  the  Air  Force  has
settled with over 80 officers  and  he  thinks  that  settlement  should  be
extended to him and other SERBed officers.

In support of the appeal, applicant submits a letter  to  the  Secretary  of
the Air Force, dated 7 January 1999 and a  letter  from  Office  of  General
Counsel, dated 29 January 1999.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 26 April 1967, applicant was  commission  a  second  lieutenant  and  was
progressively promoted to the grade of colonel on 15 May 1991.

He was considered and selected for  early  retirement  by  the  Fiscal  Year
1994B (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 1 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 25 years,  2  months
and 26 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  October  1994.
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 FY94B Colonel SERB.  The SERB  selected
7, or 29.2 percent,  of  the  24  chaplain  colonels  considered  for  early
retirement.   There  is  no  information  available  as  to  the  number  of
minorities/women considered and selected by 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.  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  3  March  1999.   Applicant
contends that the three-year filing limitation should start  from  the  date
of the Baker settlement and “certainly by the letter  from  SecAF’s  General
Counsel instructing his BCMR request.”  In  reality,  the  Charge  that  the
applicant asserts is discriminatory has  been  a  matter  of  public  record
since his board was held in  1994Likewise,  a  letter  from  the  Air  Force
General Counsel’s office informing applicant of his right to  apply  to  the
AFBCMR for relief does not excuse  the  three-year  filing  limitation.   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 March 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 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 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

Applicant  review  the  Air  Force   evaluations   and   states   that   the
recommendation from  the  advisory  is  that  the  applicant  be  denied  as
untimely.  As recently as  29  January  1999,  the  Office  of  the  General
Counsel, Department of the Air Force, suggested that he sue or forward  this
matter to the BCMR.  Also, the fact that the Air  Force  has  only  recently
settled the  case  with  other  colonels  who  have  sued  relative  to  the
instructions given to the SERB  should  give  life  to  this  request.   The
advisory says that he failed to provide any evidence of a material error  or
injustice....  It is the Air Force’s  position  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....”   The  evidence  of
material error or injustice is obvious to anyone who would look at the  list
of persons who were SERBed.  He does  not  have  a  complete  list  of  line
officers who were selected, but he does know,  within  the  chaplaincy,  who
were selected.  He suggests that  the  instruction  saying  “you  should  be
particularly sensitive to....” and “The board shall prepare  for  review  by
the Secretary and the Chief of  Staff....”  builds  in  an  automatic  bias.
Although one is not supposed to assume that a party is guilty when  a  court
case is settled out-of-court, it does certainly  give  rise  to  the  belief
that the party who settled was concerned about how a jury  would  have  read
the evidence.  So here  is  the  evidence:  of  those  chaplains,  who  were
selected by the 1994 SERB, there were  no  Asians  selected,  no  black,  no
women, no Pacific-Islanders, no Hispanics, no other categories  of  minority
that you might designate.  In the words  of  another  generation,  the  only
persons who were selected for early retirement were WASPS  -  white,  Anglo-
Saxon, Protestants, no Jewish  selected,  no  Catholic  chaplains  selected.
And of those Protestants who were selected, 60% were southern Baptists.   He
has this information only because he personally called  every  chaplain  who
were eligible for the SERB and found this data directly from  the  ministers
who were involved - the Air Force Personnel Center would not give  him  this
data - he wonders why!  He has also confirmed this information  through  the
office which endorses chaplains for the  Southern  Baptist  Convention.   He
honestly does not know what the intent of the Charge  was.   He  only  knows
that  the  result  was,  unquestionably,  a  textbook  example  of   reverse
discrimination.  He believes that to be unequivocal.  Because that is  true,
he believes the only moral response would be to compensate  those  who  were
wronged - all the chaplains who were selected for early retirement  by  that
board - in the same manner that the Baker case was settled.  That  would  be
his hope, but he understands that he can only apply for that remedy  in  his
own name.

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.  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 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 3 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRR, dated 18 May 99.
   Exhibit D.  Letter, USAF/JAG, dated 10 Jun 99.
   Exhibit E.  Letter, AFBCMR, dated 19 Jul 99.
   Exhibit F.  Applicant’s Response, dated 3 Aug 99,
      w/attachment.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chairman