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AF | BCMR | CY2003 | BC-2002-02733
Original file (BC-2002-02733.doc) Auto-classification: Approved

                            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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