RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-01100

            COUNSEL:  BARRY P. STEINBERG

            HEARING DESIRED:  YES


_________________________________________________________________


APPLICANT REQUESTS THAT:

1.    His records reflect that he retired with 30 years and 1 day of  total
military service.

2.    Calculate his retired pay, effective 1 March 1998, 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 be awarded payment equal to 14 times the total of his monthly: (a)
basic pay, (b) basic allowance  for  quarters  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 appropriate withholding deduction and credit for taxes.

_________________________________________________________________

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.  The  basis
for correction is the unconstitutional  and  illegal  conduct  of  the  FY92
Colonel Selective Early Retirement Board (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 to his disadvantage.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 28 January 1965, applicant was commission a  second  lieutenant  and  was
progressively promoted to the grade of colonel on 1 January 1987.

He was considered and selected for early retirement by the Fiscal Year  1992
(FY92) Selective Early Retirement Board (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 27  years,  4  months
and 2 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Retirements Branch, Directorate of Personnel Program  Management,
AFPC/DPPRRP,  reviewed  the  application  and  states  that  the   applicant
mandatorily retired under the provisions of the SERB on  1  September  1992.
They defer to AF/JAG 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 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.C1.  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.

Relying upon paragraph 5 of the board report, the 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  March  1999.   The  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 has been  a  matter  of
public record since his board was  held  in  1992.   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)  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.

The applicant also contends that  the  Air  Force  falsified  his  DD  214,
Certificate of Release or Discharge from Active  Duty,  by  indicating  his
retirement was voluntary.  Applicant’s attorney insinuates that  with  this
fabrication, the Air Force was involved in some nefarious plot  to  deprive
applicant of his right to litigate his SERB selection.   For  example,  the
applicant contends that  this  “fabrication”  prevented  him  from  seeking
relief from the United States Court of Federal Claims, because  that  court
lacks jurisdiction over voluntary  retirements.   Applicant  also  contends
that this voluntary retirement designation  precluded  applicant’s  counsel
from identifying him and offering him the opportunity  to  join  the  Baker
litigation.  The contention that his  “falsification  of  records”  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 214.  Some officers objected and  requested  that
their DD 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 214 reflect he was retired involuntarily, nor  does  he  now
request his DD 214 be changed.  Had the applicant  actually  sought  relief
from the United States Court of Federal Claims, the  Air  Force  would  not
have opposed a request to characterize his retirement as involuntary.   Nor
would they oppose it now if applicant requested it.  More importantly, even
if applicant’s DD 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 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.

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.

The rescoring referred to in paragraph 5, which the 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 rescored,  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, 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  the  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 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 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.”

The 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 the 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 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 28 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRRP, dated 23 Jun 99.
   Exhibit D.  Letter, USAF/JAG, dated 14 Jul 99.
   Exhibit E.  Letter, AFBCMR, dated 16 Aug 99 and 7 Sep 99.
   Exhibit F.  Counsel’s Response, dated 17 Sep 99.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chairman