RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00021

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His retirement date be established to reflect  30  years  for  retired
purposes.

2.    He be provided the difference between his retirement  pay  and  active
duty pay and allowances from September 1992 and June 1994.

3.    His retired pay be based on 30 years of service vice 28  years  and  2
months.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He has always believed that the  January  1992  Selective  Early  Retirement
Board (SERB)  was  unfair,  giving  certain  minority  and  female  officers
special consideration.  The  class  action  suit,  as  reported  in  the  14
September 1998 Air Force Times, confirmed his believe of unfair treatment.

In support of the appeal, applicant submits a copy of  a  14 September  1998
article from the Air Force Times.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 1 June 1964,  applicant  was  commission  a  second  lieutenant  and  was
progressively promoted to the grade of colonel on 1 May 1985.

He was considered and selected for early retirement by the Fiscal Year  1992
(FY92) SERB.  The Secretary of the Air Force approved and  signed  the  list
of selected officers on 11 February 1992.

On 31 August 1992, applicant was relieved from extended active duty  and  on
1 September 1992, retired in the grade of colonel with  28  years,  1  month
and 4 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 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.

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.

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 29 December 1998 (he  indicates
his date of discovery was October 1998).  Applicant’s  only  explanation  is
that the “ruling on the class action suit was not completed until 1998,  and
the results were published in the 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 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  October  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  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 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.  If the applicant was among the 200  colonels  referred  to  in
the Air Force Times article, who were given  the  opportunity  to  join  the
Baker litigation, he has forgone that opportunity.  If  not,  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.

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  HQ  USAF/JAG
states “of the 2,086 colonels under consideration by the SERB...none of  the
females were selected for early retirement.”  He  believes  this  raises  an
issue that either all females were in the top 70  percent  of  the  colonels
considered or there was some other factor which enhanced  their  opportunity
to be continued.

The SERB’s Charge states “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.”  This Charge, however,  contradicts  itself  by  apparently  giving
extra consideration to female and minority officers.   He  believes  a  case
could be made that all officers considered achieved the rank of colonel  and
that suggests that past individual and/or social issues had not placed  them
at a disadvantage during their careers.

In the last sentence of the Charge, “The board shall prepare...a  report  of
minority and female officer selections as compared to  the  selection  rates
for all officers considered by the board.”  There is  no  mention  of  merit
and he believes it is clear what the board was expected to do.

The HQ USAF/JAG cites his only evidence as  The  Air  Force  Times  article.
The article outlines in detail and  provides  sufficient  evidence  why  the
suit was brought.  To reiterate that evidence would only  be  a  duplication
of information already available.  Additionally, disapproval is  recommended
because he failed to file his appeal in a timely manner and  he  was  remiss
for not seeking some heretofore unknown reason to support his  believe  that
something must have been wrong with the selection process.

He was disappointed to learn that the Air Force would include  a  Charge  to
the SERB such as the one in question.  After learning of its  existence,  he
began the filing process.  He notes that Block 11a on the DD Form  149  asks
for the date of discovery and not the date of the error which is  accurately
reflected on his DD Form 149.  Using the rationale stated  in  the  opinion,
he believes a large number of appeals could  be  denied  if  personnel  were
held to a date of three years  following  the  commission  of  an  error  as
compared to its discovery.  The interests of justice  could  be  jeopardized
if this rigid interpretation were applied.

He did not read in the opinion where the HQ USAF/JAG asserted an  inaccuracy
in The  Air  Force  Times  article  existed.   The  article  indicated  that
minority officers fared better than the board norm.   It  appears  that  the
opinion tries to defend the legitimacy of the Charge to  the  SERB,  and  it
goes on to state that “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....”  He  would  ask  the
Board to consider substituting the words “white males” in lieu of  “minority
and women officers” and question whether that would or should  be  construed
as advantageous to white males.  If such a Charge were to  be  made  public,
he can only imagine the resulting reaction to such wording.

The HQ USAF/JAG also states “it would be  inappropriate  for  the  Board  to
draw any inferences from the Baker settlement.”   If  strong  legal  grounds
supported the Air Force position, he does not believe the  Air  Force  would
have corrected the 83 records in question and made the  monetary  settlement
that it did.  It appears the Air Force  (and  the  Board)  should  agree  to
equal treatment for the other selectees who  were  considered  unfairly.   A
person should not have to seek legal recourse through the courts to  resolve
what he believes to be an obvious inequity.  It is for this reason that  the
Air Force members are afforded the opportunity to  appeal  correction(s)  of
their military records.

With  regard  to  the  HQ  AFPC/DPPRR  opinion,  it  recommends   that   the
application be denied; however, “if the AFBCMR decides that an injustice  or
error occurred, in order to  meet  the  applicant’s  request,  his  military
records would need to be changed to  show  that  he  was  not  selected  for
involuntary retirement...and that a voluntary retirement request of  1  June
1994 was submitted, approved...and  effected  on  that  date.”   The  stated
reason for disapproval is that no provision of law would allow extension  of
a  retirement  date  established  when  selected  by  a  SERB.    Since   an
administrative correction of records can correct records to fix an error  or
injustice, he feels this is the appropriate action for his situation.

In conclusion, he believes that the two advisory  opinions  rendered  by  HQ
USAF/JAG and HQ AFPC/DPPRR do not justify a recommendation  of  disapproval.
The Office of the Judge Advocate General presents  evidence  which  supports
his position in the letter and the HQ AFPC/DPPRR has the right  approach  in
their opinion.

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.   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 29 Dec 98, 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 12 Apr 99.
   Exhibit F.  Applicant's response, dated 29 Jun 99.





                                   THOMAS S. MARKIEWICZ
                                   Panel Chairman