RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00835
            INDEX CODE: 136.01

            COUNSEL:  BARRY P. STEINBERG

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His military records be corrected to provide constructive  credit  for
sufficient active duty pursuant to 10 USC 1405 and 37 USC 205 such that  his
records will reflect that he retired with  26  years  and  1  day  of  total
military service.

2.    His retired pay, effective 1 March 1998, be calculated  on  the  basis
of his having retired with 26 years and 1 day of active federal service  and
recomputation of his retired pay will be based upon the pay scale in  effect
on 1 September 1995, as adjusted by subsequent retired pay  cost  of  living
adjustments.

3.    He receive a payment equal to 14 times the total of  his  monthly  (a)
basic pay, (b) basic allowance for quarters (BAQ) to which he  was  entitled
without regard to whether or not he  occupied  government  quarters  at  the
time of his involuntary retirement, (c)  basic  allowance  for  subsistence,
(d) a $130 payment for variable housing allowance, and (e)  flight  pay,  to
the extent he was entitled for the last  full  month  he  served  on  active
duty, reduced by an amount equal to $1,000.00 less than the gross amount  of
retired pay to which he was actually entitled for the  first  14  months  he
was retired, with  an  appropriate  withholding  deduction  and  credit  for
taxes.

4.    His records be corrected to reflect he  was  not  selected  for  early
retirement by the Fiscal Year 1992 (FY92) Selective Early  Retirement  Board
(SERB), but rather continued on active duty until he was retired for  length
of service with 30 years active federal commissioned service and he  receive
an adjustment in pay and allowances, with offsets for retired  pay  received
and civilian earnings.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel states that the basis for correction of the  applicant’s
records is the unconstitutional and illegal  conduct  of  the  FY92  Colonel
SERB, which was instructed to give preference in its  selection  process  to
women and minorities.  Because the Board  selected  the  maximum  number  of
officers it was permitted to select, any preference, advantage, or  revoting
in favor of one officer necessarily disfavored another officer, because  any
change in the order of merit list to the advantage of one officer caused  at
least one other officer to change his position in the order  of  merit  list
to his disadvantage.

In support of the appeal, applicant’s counsel submits a 11 page statement.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 25 November 1966, applicant was commission a second  lieutenant  and  was
progressively promoted to the grade of colonel on 1 January 1988.

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 25 years,  11  months
and 17 days active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Retirements  Policies  &  Programs,  Directorate  of  Personnel  Program
Management, AFPC/DPPRRP,  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.

Applicant incorporates by reference all evidence submitted  by  the  parties
and the judicial decisions relating to the 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, 127F.3d 1081 (Fed. Cir.  1997).
 The language in the Charge read 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.

Relying upon paragraph 5 of the  board  report,  applicant  also  speculates
that some of the records were  rescored  as  a  result  of  the  affirmative
action instruction.  Paragraph 5 read as follows:

    With your guidance concerning  minorities  and  women  specifically  in
    mind, the board thoroughly reviewed the records  of  all  minority  and
    women officers eligible for selective early retirement.  The  retention
    rates for blacks and women were better than the overall board  average.
    The retention rate for Hispanic officers was below the  board  average.
    To ensure each minority and woman officer received fair  and  equitable
    consideration, the board president carefully reviewed their records and
    the  scoring  results.   Where  there  was  any   doubt   as   to   the
    competitiveness of an officer, he caused the record to be  rescored  to
    resolve the doubt.  It is the judgment of the board president  and  the
    members of the board that those officers recommended for retention  are
    the best qualified officers.

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  24  March  1999.   Applicant
explains that he did  not  become  aware  of  the  unconstitutional  actions
pertaining to the conduct of the FY92 SERB until he  read  about  the  Baker
settlement in the 14 September  1998  Air  Force  Times.   In  reality,  the
Charge that the applicant asserts is discriminatory and paragraph 5  of  the
board report have been a matter of public record since his  board  was  held
in 1992.

Applicant states  that  the  AFBCMR  denied  his  previous  application  for
relief, but invited him to submit newly  discovered  relevant  evidence  for
consideration by the Board.  The applicant’s “new evidence” is nothing  more
than his becoming aware of the Baker settlement and its associated  evidence
after 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  and
paragraph 5 concerning the revoting) was as  discoverable  at  the  time  it
occurred in 1992, as it was in the fall of 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.

Applicant also contends that the  Air  Force  falsified  his  DD  Form  214,
Certificate of Release or Discharge from  Active  Duty,  by  indicating  his
retirement was  voluntary.   Applicant  contends  that  this  precluded  his
counsel from identifying him and offering him the opportunity  to  join  the
Baker litigation.  The  contention  that  this  “falsified  record”  somehow
harmed the applicant and thus excuses his untimely filing is without  merit.
 In order to spare SERB’d members any  potential  embarrassment  from  being
SERB’d, the Air Force decided to code all  SERB  retirements  as  voluntary.
When members were notified the SERB had selected them,  they  were  provided
an information packet which informed them  how  their  retirement  would  be
characterized on their DD Form 214.  Some officers  objected  and  requested
that their DD Form 214 reflect that they  were  retired  involuntarily.   In
every case where an officer requested this, it was done.  Applicant did  not
ask then to have his DD Form 214 reflect he was retired  involuntarily,  nor
did he request it in his previous AFBCMR application.  Even  now,  applicant
does not request his DD Form 214 be changed.  But  even  if  applicant’s  DD
Form 214 had been coded to reflect he was SERB’d the Privacy Act would  have
precluded the Air Force from releasing that  information  to  third  parties
without applicant’s permission.  Thus, the fact applicant’s DD Form 214  was
coded as a voluntary  retirement  had  no  effect  on  applicant  not  being
contacted about possible litigation against the Air Force.

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
cause 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 consideration, the possibility  that  some  minority
    officers  might  have  undergone  different  experiences.”   Baker,  34
    Fed.Cl. at 656.

The rescoring referred to in  paragraph  5,  which  applicant  contends  was
improper, was explained in a declaration from Colonel Wilson, who served  as
the Chief of Operations, Selection Board Secretariat, during the FY92  SERB.
 In his declaration, Colonel Wilson explained that:

    With respect to the CY92 SERB, the  language  in  paragraph  5  of  the
    report of board proceedings  was  identical  to  that  which  had  been
    developed  for  promotion  boards.   Unfortunately,  although   it   is
    technically accurate, it is particularly misleading in the context of a
    SERB.  When a record is returned for rescoring in promotion boards, the
    President will typically send the record  to  a  panel  which  has  not
    reviewed it.  Because the procedures involved in a SERB  required  both
    panels to review all of the records which were  being  recommended  for
    early retirement, there was rarely any reason to rescore a record.   In
    the CY92 SERB, to the best of my recollection, only one record, that of
    a former Prisoner of War, was individually selected for rescoring.


    In any event, the language in paragraph 5 is accurate in that the board
    did rescore all records in the bottom 40 percent and, therefore,  there
    was no doubt as  to  the  competitiveness  of  the  officers  who  were
    ultimately ranked in the bottom 30 percent.  Nonetheless, its inclusion
    in the CY92 SERB report of  board  proceedings  is  misleading  to  the
    extent that it implies the records of women and minority officers  were
    treated more favorable than those of majority males.

Thus, the applicant’s contention that the “Department  of  Justice  withdrew
evidence it had filed which suggested that no personnel files  were  revoted
as  a  result  of  the  affirmative  action   instruction...leads   to   the
inescapable  conclusion  that  files  were  revoted,  in  violation  of  the
constitutional mandate”  ignores  the  fact  that  the  government  did  not
withdraw Colonel Wilson’s declaration.  While the  government  admitted  the
language in paragraph 5 is misleading, contrary  to  applicant’s  assertion,
the government did not abandon its position on the meaning of  paragraph  5.
Colonel  Wilson’s  declaration  remained  part  of  the  record  (to   which
applicant is prepared to “stipulate to”) and it clearly refutes  applicant’s
contention that rescoring was done to provide  minority  officers  a  second
opportunity to be retained.  The fact was that only one record,  that  of  a
former POW, was individually rescored.   It  is  true  that  the  bottom  40
percent were rescored.  Thus, the rescoring was  not  taken  to  accommodate
minority or female goals, quotas or objectives as  applicant  contends,  but
as Colonel Wilson indicated, it was done to eliminate any doubt  as  to  the
competitiveness of the officers who were ultimately ranked in the bottom  30
percent and thus selected for early retirement.

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 inferences (that the Federal rules of Evidence would preclude)  from
the Baker settlement.  Thus, the Board would have to  reach  the  conclusion
that the Air Force settled the Baker case  because  either  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 finding 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.”

Applicant’s counsel also references four SERB’d  officers  not  included  in
the Baker litigation who received the same benefits as the  Baker  litigants
as justification for applicant to receive  the  settlement  benefits.   What
applicant’s  counsel  did  not  mention  was  that   these   officers   were
represented by him, and had  begun  the  process  of  filing  a  lawsuit  to
litigate their SERB selection.  Rather than litigate the same issues  again,
the Air Force elected to grant these  four  officers  the  benefits  of  the
Baker settlement.

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 and the evidence associated with the settlement  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

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,  not  because  of  the  Court  settlement,  but
rather because 87 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.

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.

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 24 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRRP, dated 18 May 99.
   Exhibit D.  Letter, USAF/JAG, dated 30 Jun 99.
   Exhibit E.  Letter, AFBCMR, dated 9 Aug 99.
   Exhibit F.  Counsel's response, dated 23 Aug 99.





                                   THOMAS S. MARKIEWICZ
                                   Panel Chairman