RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-00546
COUNSEL: NONE
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
He be considered for promotion to the grade of colonel by Special Selection
Board (SSB) for the Calendar Year 1996B (CY96B) Colonel Judge Advocate
General (JAG) Central Selection Board.
________________________________________________________________
THE APPLICANT CONTENDS THAT:
The special instructions given to the CY96B selection board by the
Secretary of the Air Force violated the Equal Protection Clause of the
United States Constitution and operated to his detriment as a male, non-
minority officer.
In support of the appeal, the applicant submits a copy of the Secretary’s
Memorandum of Instruction to the CY96B selection board.
Applicant’s complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant was considered and not selected for promotion by the CY96B
Colonel JAG Central Selection Board (in-the-promotion zone (IPZ)).
On 1 January 1999, he retired in the grade of lieutenant colonel.
________________________________________________________________
AIR FORCE EVALUATIONS:
AF/JAG recommends the application be denied based on the applicant’s
failure to timely file. AF/JAG states, in part, that there is no excuse
for the applicant’s late filing and complaint of the MOI language that has
existed since 1996.
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.
AFPC/DPPPO states that the applicant met the CY96B Colonel JAG Central
Selection Board as an IPZ eligible.
The AFPC/DPPPO evaluation is at Exhibit D.
________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:
Complete copies of the evaluations were forwarded to the applicant on 16
May 2003 for review and response within 30 days. However, as of this date,
no response has been received by this office.
________________________________________________________________
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 the
applicant had no reason to file an appeal on the issue under consideration
until the court’s findings were published. Therefore, 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 Board (SSB). 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 colonel by
Special Selection Board (SSB) for the Calendar Year 1996B Colonel Judge
Advocate General (JAG) Central Selection Board.
________________________________________________________________
The following members of the Board considered Docket Number BC-2003-00546
in Executive Session on ____________________, 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 14 Feb 03, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AF/JAG, dated 3 Apr 03.
Exhibit D. Letter, AFPC/DPPPO, dated 5 May 03.
Exhibit E. Letter, SAF/MRBR, dated 16 May 03.
THOMAS S. MARKIEWICZ
Vice Chair
AFBCMR BC-2003-00546
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 colonel
by Special Selection Boards (SSB) for the Calendar Year 1996B Colonel Judge
Advocate General (JAG) Central Selection Board.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
AF | BCMR | CY2003 | BC-2002-04092
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...
AF | BCMR | CY2005 | BC-2004-01231
If he is not selected for promotion by the SSB, his records as corrected by the Air Force Personnel Center (AFPC) on 1 November 1996, be considered for promotion to the grade of colonel by an SSB for the CY95B Colonel Central Selection Board. Further, if he is selected for promotion, they will provide him the procedures to correct his retirement date at that time. The AF/JAA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF...
AF | BCMR | CY2003 | BC-2002-02733
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...
AF | BCMR | CY2003 | BC-2002-01975
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 02-01975 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: He 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...
AF | BCMR | CY2003 | BC-2003-01438
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2003-01438 COUNSEL: GRANT LATTIN HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be considered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 1997C (CY97C) Lieutenant Colonel Line Central Selection Board. The AFPC/DPPPO evaluation is at Exhibit...
AF | BCMR | CY2007 | BC-2006-03185
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2006-03185 XXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: YES MANDATORY CASE COMPLETION DATE: 19 February 2008 _________________________________________________________________ APPLICANT REQUESTS THAT: 1. The AF/JAA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: Complete copies of the Air Force...
AF | BCMR | CY2003 | BC-2002-03410
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2002-03410 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be considered for promotion to the grade of colonel by a Special Selection Board (SSB) for the Calendar Year 1999A (CY99A) Colonel Judge Advocate General (JAG) Central Selection Board. There is no legal basis to challenge the revised MOI section...
AF | BCMR | CY2003 | BC-2002-01608
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...
AF | BCMR | CY2004 | BC-2003-03400
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2003-03400 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be reconsidered for promotion to the grade of major, Professional Military Education (PME), and reinstatement to active duty, by Special Selection Boards (SSBs) for the Calendar Years 1994 (CY94) through 1998B Major Line Central Selection Boards. ...
AF | BCMR | CY2005 | BC-2004-02455
The AF/JAA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: Contrary to the evaluation’s assertion, his request is timely filed. Exhibit B. THOMAS S. MARKIEWICZ Chair AFBCMR BC-2004-02455 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...