RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-02267
COUNSEL: None
HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be considered by a Special Selection Board (SSB) for promotion to
the grade of colonel for the Calendar Year 1998 (CY98) and all other
boards that he was considered without the Air Force Memorandum of
Instruction (MOI).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The Memorandum of Instruction given at the CY98 and other promotion
boards tells board members to favor females. This same instruction
was given at other boards in which he was considered. In Berkley v
US, a Federal Court found that these instructions subjected officers
to unequal treatment based upon race or gender. This meant that
female officers were being evaluated more favorably then their records
would otherwise permit. As a male officer, he requests SSB
consideration without the offending instruction.
In support of the appeal, applicant submits a copy of the offending
instructions and a copy of Berkley v US, decision by the United States
Court of Appeals for Federal Circuit.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is currently serving on extended active duty in the
grade of lieutenant colonel with a date of rank and effective date of
1 December 1994.
Applicant has five nonselections for promotion to the grade of colonel
beginning with the CY98 Colonel JAG Central Selection Board.
Applicant has received eight OPR's since he was promoted to the grade
of lieutenant colonel, all of which reflects "Meets Standards."
_________________________________________________________________
AIR FORCE EVALUATION:
HQ USAF/JAA recommended denial and stated that there is no legal basis
to challenge the revised MOI section and the applicant has failed to
demonstrate any error or manifest injustice requiring the AFBCMR to
otherwise act. The revised MOI section was presented to applicant’s
selection board and did not create either a constitutionally
objectionable classification or benefits or burdens for competitors in
the board process.
HQ USAF/JAA complete evaluation is attached at Exhibit C.
AFPC/DPPPO recommended disapproval and stated that the applicant has
not provided any proof that his consideration was contrary to law.
Beginning with the CY98C Central Selection Boards, the verbiage for
the MOI provided to Central Selection Boards and Special Selection
Boards was changed to delete cited instruction. Therefore, the
applicant’s request does not fall under the Berkley decision. They,
therefore, are opposed to the applicant receiving SSB consideration on
this issue.
AFPC/DPPPO complete evaluation is attached at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Complete copies of the Air Force evaluations were forwarded to the
applicant on 26 September 2003, for review and comment. 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, it is in the
interest of justice to excuse that failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. After a thorough review of the
evidence of record and applicant’s submission, we are not persuaded
that relief should be granted. The applicant contends that the MOI
used by the CY99A selection board provided particular attention to
women and minority eligibles; thus, violating the equal protection
guarantee of the Fifth Amendment. However, in 1998, the MOI was
revised to remove the language cited by the court in Berkley and was
not in use during the CY99A selection board. In the absence of
evidence that his records were in error or unjust at the time of his
consideration by the CY99A selection board, we believe the applicant
has failed to sustain his burden that he has suffered either an error
or an injustice to warrant SSB consideration.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of a material error or injustice; that the
application was denied without a personal appearance; and that the
application will only be reconsidered upon the submission of newly
discovered relevant evidence not considered with this application.
_________________________________________________________________
The following members of the Board considered Docket Number BC-2003-
02267 in Executive Session on 29 October 2003, under the provisions of
AFI 36-2603:
Mr. Thomas S. Markiewicz, Chair
Ms. Kathleen F. Graham, Member
Mr. James W. Russell, III, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 Jul 03, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPPO, dated 17 Sep 03.
Exhibit D. Letter, HQ USAF/JAA, dated 18 Jul 03
Exhibit E. Letter, SAF/MRBR, dated 26 Sep 03.
THOMAS S. MARKIEWICZ
Chair
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