RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2002-04092

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

She be considered for promotion to the grade  of  lieutenant  colonel  by  a
Special  Selection  Board  (SSB)  for  the  Calendar  Year   1994A   (CY94A)
Lieutenant Colonel Judge Advocate General  (JAG)  Central  Selection  Board,
and any subsequent boards where instructions were  given  favoring  minority
and female officers, and that the SSBs be conducted without  these  portions
of the instructions being given.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

A decision by the U.S. Court of Appeals for the  Federal  Circuit  that  the
Secretary of the Air Force’s  Memorandum  of  Instruction  (MOI)  concerning
consideration  of  minority  and  female  officers,  required   differential
treatment of officers based on their race and gender.  In view of this,  and
since these instructions were used  during  the  CY94A  board,  as  a  white
female officer, she should receive SSB consideration for promotion.

The applicant cites a U.S. Court of Appeals for  the  Federal  Circuit  case
that questioned the constitutionality of Equal Employment Opportunity  (EEO)
language used by selection boards.

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.

She was considered in-the-promotion  zone  (IPZ)  by  the  CY94A  Lieutenant
Colonel JAG Central Selection Board that convened on  11 October  1994,  and
was not selected for promotion.

_________________________________________________________________

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
CY94A Lieutenant Colonel JAG Selection Board that  convened  on  11  October
1994 as an IPZ eligible.

The AFPC/DPPPO evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant states that individuals who were  passed  over  for  promotion
more than three years ago are placed in  a  no-win  situation  and  the  Air
Force cannot lose: if they appealed the instructions at the  time,  the  Air
Force would have  said  there  has  been  no  error  or  injustice  and  the
instructions were just fine.  Now that some are appealing  as  a  result  of
the Berkley decision, the Air Force is saying, “too late.”  Either way,  the
grievant loses and the Air Force wins.   That,  in  and  of  itself,  is  an
injustice.

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 due to the special instructions that were given to  the  CY94A
board, minority and female officers  were  being  evaluated  more  favorably
than their records would otherwise permit.  As a white female  officer,  she
feels that she should be given SSB consideration without  the  use  of  such
instructions.  In support of her request, she cites the recent U.  S.  Court
of Appeals for the Federal Circuit decision in Berkley, that the MOI to  the
selection board 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  her  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  1994A,
1995B, 1997B, and 1997E Lieutenant  Colonel  Judge  Advocate  General  (JAG)
Central Selection Boards.

_________________________________________________________________

The following members of the Board considered  Docket  Number  02-04092,  in
Executive Session on 12 May 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 18 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AF/JAG, dated 17 Jan 03.
    Exhibit D.  Letter, AFPC/DPPPO, dated 6 Feb 03.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Feb 03.
      Exhibit F.  Letter, Applicant, dated 4 Mar 03.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

AFBCMR BC-2002-04092




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 1994A, 1995B, 1997B, and 1997E Lieutenant Colonel Judge Advocate
General (JAG) Central Selection Boards.








JOE G. LINEBERGER

Director

Air Force Review Boards Agency