RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-02733
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be considered for promotion to the grade of lieutenant colonel by
Special Selection Boards (SSBs) for the Calendar Year 1993A (CY93A)
Lieutenant Colonel Judge Advocate General (JAG) Central Selection Board,
and any subsequent boards where instructions were given to give female and
minority officers special consideration, and that the SSBs be conducted
without the discriminatory instructions.
_________________________________________________________________
THE APPLICANT CONTENDS THAT:
He should receive SSB consideration for promotion based on a decision by
the U.S. Court of Appeals for the Federal Circuit that the special
instructions to the selection boards required differential treatment of
officers, based on their race and gender.
In support of the appeal, the applicant submits a copy of a U.S. Court of
Appeals for the Federal Circuit decision.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant was considered and not selected for promotion by the CY91B
(in-the-promotion zone (IPZ)), CY92B, CY93A, and CY94A Lieutenant Colonel
JAG Central Selection Boards.
On 1 August 1995, he retired in the grade of major.
_________________________________________________________________
AIR FORCE EVALUATIONS:
The General Law Division, AF/JAG, recommends the application be denied
based on the applicant’s failure to file timely. AF/JAG states, in part,
that there is no excuse for the applicant’s late filing and complaint of
the Memorandum of Instruction (MOI) language that has existed since 1993.
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
CY92B, CY93A, and CY94A Lieutenant Colonel JAG Central Selection Board.
The AFPC/DPPPO evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:
The applicant states that AF/JAG opines that he should have known in 1994
that his board had been given unconstitutional directions to consider
minority and gender factors when making promotion selections. However,
AF/JAG offers no suggestion as to how he was to know these instructions
were given to the board. The instructions were not made public nor were
they provided to him when he made a Freedom of Information (FOI) request
seeking information as to what was presented to the CY93A board.
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 not timely filed; however, we believe that it is in
the interest of justice to excuse the failure to timely file.
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 should receive SSB consideration for promotion based on
the decision of the U.S. Court of Appeals for the Federal Circuit 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 1991B,
1992B, 1993A and 1994A Lieutenant Colonel Judge Advocate General (JAG)
Central Selection Boards.
_________________________________________________________________
The following members of the Board considered Docket Number 02-02733 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 22 Aug 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 16 Dec 02.
Exhibit E. Letter, SAF/MRBR, dated 20 Dec 02.
Exhibit F. Letter, Applicant, dated 39 Jan 03.
THOMAS S. MARKIEWICZ
Vice Chair
AFBCMR 02-02733
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 APPICANT, be considered for promotion to the grade of
lieutenant colonel by Special Selection Boards (SSBs) for the Calendar
Years 1991B, 1992B, 1993A and 1994A Lieutenant Colonel Judge Advocate
General (JAG) Central Selection Boards.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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