RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: 02-01608

            COUNSEL:  GRANT E. LATTIN

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be considered for promotion to the grade of lieutenant  colonel  by
a Special  Selection  Board  (SSB)  for  the  Calendar  Year  1996C  (CY96C)
Lieutenant  Colonel  Line  Central  Selection  Board,  and  that  the  Equal
Employment Opportunity (EEO) language originally used  by  the  CY96C  board
not be considered by the SSB.

2.    Officials within the Air Force provide  the  AFBCMR  with  appropriate
information to determine whether he was not selected for  promotion  because
of  racial  or  gender  discrimination,  or  because  his  record  was   not
competitive for promotion.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

He was the victim of reverse discrimination due to the  use  of  gender  and
racial classifications by the Secretary of the Air Force  (SAF)  during  the
CY96C Central Lieutenant Colonel Selection Board.

The procedures used by the selection  board  violated  his  Fifth  Amendment
rights  under  the  U.S.  Constitution.   The  Secretary’s   Memorandum   of
Instruction (MOI) to the selection board stated  that  their  evaluation  of
minority and women officers must clearly  afford  them  fair  and  equitable
consideration and that the board prepare for review  by  the  Secretary  and
the Chief of Staff, a report of minority and  women  officer  selections  as
compared to the selection rates for all officers considered  by  the  board.
This special consideration had a definite impact on his fair  and  equitable
consideration by the CY96C board.

The applicant cites two U.S. Court of Appeals for the Federal Circuit  cases
that questioned the constitutionality of Equal Employment Opportunity  (EEO)
language used by selection boards.   The  language  used  by  the  selection
boards is identical to the language used by his selection board.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major.

He was considered and not selected for promotion to the grade of  lieutenant
colonel by the CY96C (in-the-promotion  zone  (IPZ))  and  CY97C  Lieutenant
Colonel Line Central Selection Boards.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The General Law Division,  AF/JAG,  states,  in  part,  that  if  the  Board
determines  there  has  been  an  error  or  injustice,  it  may  grant  the
applicant’s  request.   The  Air  Force  has  consistently  maintained,   in
litigation and public  comment,  that  the  challenged  language  is  not  a
constitutionally objectionable classification and  creates  no  benefits  or
burdens for competitors in the  board  processes.   In  order  to  determine
whether there has been an  equal  protection  violation  under  the  court’s
strict scrutiny standard, further inquiry is required to  ascertain  whether
the racial  classification  serves  a  compelling  government  interest  and
whether it is narrowly tailored  to  the  achievement  of  that  goal.   The
government declined to appeal this part of the decision, thus the Air  Force
is bound by the court’s conclusion.

The AF/JAG evaluation is at Exhibit C.

The Officer Promotion Branch, AFPC/DPPPO, states that the applicant met  the
CY96C Lieutenant Colonel Selection Board that convened on 8 July 1996 as  an
IPZ eligible.

The AFPC/DPPPO evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel states that AF/JAG concedes that the U.S.  Court  of
Appeals has twice concluded that the EEO language used by the  Secretary  at
the CY96C board required different treatment  of  officers  based  on  their
race and gender and must now be evaluated under a strict scrutiny  analysis.
 The court has found the same language constitutionally  defective  when  it
determined that the strict scrutiny test required the  Air  Force  to  prove
that its racial and gender classification  served  a  compelling  government
interest narrowly tailored to  the  achievement  of  that  goal,  and  after
remanding the case to a lower court, the Air Force chose not  to  meet  that
burden, and settled the case.  It is obvious the Air Force is  settling  the
cases because they are unable to meet the burden required of the courts.

The applicant’s complete response is at Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence  of  error  or  injustice  to  warrant  providing  the   applicant
promotion consideration by Special Selection Boards (SSBs).   The  applicant
contends that he was the victim of reverse discrimination due to the use  of
gender and racial classifications by the Secretary of the  Air  Force  (SAF)
in his MOI to the CY96C Central Lieutenant Colonel  Selection  Board,  which
violated his  Fifth  Amendment  rights  under  the  U.S.  Constitution.   In
support of his request, he cites the recent U.S. Court of  Appeals  for  the
Federal Circuit decision in Berkley, that the special  instructions  to  the
selection boards erroneously required  differential  treatment  of  officers
based on their race and gender.  In view of the court’s findings, and  since
the Air Force is not appealing that decision, we recommend  his  records  be
corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be  considered  for  promotion  to  the  grade  of  lieutenant
colonel by Special Selection Boards (SSBs) for the Calendar Years 1996C  and
1997C Lieutenant Colonel Line Central Selection Boards.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  02-01608  in
Executive Session on 19 February 2003, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Vice Chair
                       Mr. James W. Russell, III, Member
                       Ms. Kathleen Graham, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:





    Exhibit A.  DD Form 149, dated 9 May 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AF/JAG, dated 27 Nov 02.
    Exhibit D.  Letter, AFPC/DPPPO, dated 10 Dec 02.
    Exhibit E.  Letter, SAF/MRBR, dated 13 Dec 02.
    Exhibit F.  Letter, Counsel, dated 19 Dec 02.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

AFBCMR 02-01608




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be considered for promotion to the grade of
lieutenant colonel by Special Selection Boards (SSBs) for the Calendar
Years 1996C and 1997C Lieutenant Colonel Line Central Selection Boards.








JOE G. LINEBERGER

Director

Air Force Review Boards Agency