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AF | BCMR | CY2003 | BC-2003-02267
Original file (BC-2003-02267.doc) Auto-classification: Denied

                            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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