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 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 is currently serving on active duty in the grade of major.
He was considered and not selected for promotion by the CY97C (in-the-
promotion zone (IPZ)) Lieutenant Colonel Line Central Selection Board.
_________________________________________________________________
AIR FORCE EVALUATIONS:
The General Law Division, AF/JAG, states, in part, that 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. If the Board determines
that there has been an error or injustice, the Board may grant applicant’s
request.
The AF/JAG evaluation is at Exhibit C.
The Officer Promotion Branch, AFPC/DPPPO, states that the applicant met the
CY97C Lieutenant Colonel Line Central Selection Board.
The AFPC/DPPPO evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:
The applicant’s counsel states that the EEO language to the CY97C Board was
unconstitutional and the applicant is entitled to an SSB because the
selection board was convened contrary to law.
Counsel’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 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 lieutenant
colonel by Special Selection Board (SSB) for the Calendar Year 1997C
Lieutenant Colonel Line Central Selection Board.
_________________________________________________________________
The following members of the Board considered Docket Number BC-2003-01438
in Executive Session on 11 July 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 23 Apr 03, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AF/JAG, dated 30 Apr 03.
Exhibit D. Letter, AFPC/DPPPO, dated 23 Jun 03.
Exhibit E. Letter, SAF/MRBR, dated 27 Jun 03.
Exhibit F. Letter, Counsel, dated 1 Jul 03.
THOMAS S. MARKIEWICZ
Vice Chair
AFBCMR BC-2003-01438
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 Board (SSB) for the Calendar Year
1997C Lieutenant Colonel Line Central Selection Board.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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