RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01672
            INDEX CODE:  131.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be promoted to the grade  of  colonel  by  the  Calendar  Year  1993A
(CY93A) Central Colonel Selection Board.

2.  If the Board elects to promote him to colonel, applicant  requests  that
his  Meritorious  Service  Medal  (MSM),  third  oak  leaf  cluster  (3OLC),
received upon his retirement be upgraded to a Legion of Merit (LOM).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Seven months prior  to  his  in-the-primary  zone  (IPZ)  consideration  for
promotion to colonel his supervision changed three times.  As a result,  not
all his achievements and  accomplishments  were  passed  from  commander  to
commander to commander.  When  the  Promotion  Recommendation  Forms  (PRFs)
were  completed  his  latest  commander  did  not  have  the  most   current
information  to  support  his  promotion  recommendation.   Information  was
missing upon which a commander  bases  an  informed  recommendation  to  the
Senior  Rater  during  the  process  of  awarding  definitely  promote  (DP)
recommendations.   Without  critical  information,   recommendations   carry
little weight, the result  of  which  is  an  inaccurate  assessment  of  an
individual's promotion  potential.   His  last  Officer  Performance  Report
(OPR), which closed out on 9 Aug 92, was over nine months old when  reviewed
in the PRF process.  Critical information was missing  and  his  record  was
defective when considered during the promotion process.   His  senior  rater
was scheduled for an extended TDY  requiring  early  discussions  concerning
the PRFs for the  colonel's  board.   Although  his  senior  rater  had  the
required supervision, he had only been  under  his  current  supervisor  for
three months.  In the preceding seven months he accomplished numerous  major
projects which his supervisor and senior rater were unaware of.

In 1993, as part of the promotion board proceedings  the  Secretary  of  the
Air Force's "Memorandum of Instruction" (MOI)  was  read  to  all  promotion
board members.  The memorandum created a heightened awareness in  the  board
and the instructions had a definite impact on the promotion rates  for  both
minorities and women.  On 17 Apr 02, the United States Court of Appeals  for
the  Federal  Circuit  ruled  that  the  instructions  given  to  Air  Force
selection  boards  to  be  particularly  sensitive  to  women  and  minority
candidates were unconstitutional because it  violated  the  Fifth  Amendment
rights to equal protection under the law (Berkley v.  United  States).   The
court ruled  the  instruction  did  not  simply  refer  in  passing  to  the
possibility of past discrimination against minorities and women.  Rather  it
provided explicit orders that when board  members  reviewed  the  record  of
minority and women officers, it should  be  particularly  sensitive  to  the
possibility that past individual and societal  attitudes,  may  have  placed
those officers at a disadvantage from total career perspective.   The  court
concluded that the instruction required that white male officers be  treated
differently from minority and female  officers.   In  August  2002  the  Air
Force  amended  the  memorandum  to  ensure  fairness  and  equity  for  all
officers.

The promotion rate for the Calendar Year 93A Colonel Board (IPZ) was  41.6%.
 His supervisor stated that he was his number one  candidate  for  promotion
and the applicant was in the top 20% of the hundreds of lieutenant  colonels
that he had  been  associated  with.   His  testimony  clearly  states  that
critical accomplishments were missing and the senior  rater  and  Management
Level Evaluation Board (MLEB) had insufficient  evidence  to  satisfactorily
evaluate his potential.

In support of his request, applicant provided a personal  statement,  copies
of his performance reports, a personal note  he  received,  the  Berkley  v.
United  States  court  decision,  and  letters  of  support.   His  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Regular Air  Force  on  16  Jul
72.  He was progressively promoted  to  the  grade  of  lieutenant  colonel,
having assumed that grade effective and with a date of rank  of  1  Jan  89.
He was considered and not selected for promotion to the grade of colonel  by
the CY93A colonel selection board.  He was  retired  from  the  Regular  Air
Force on 1 Jan 00.  He served 27 years, 5 months,  and  15  days  on  active
duty.

_________________________________________________________________

AIR FORCE EVALUATION:

USAF/JAG recommends  that  the  application  be  denied  as  untimely.   The
statements provided by the applicant's former supervisor  and  senior  rater
fail to substantiate the applicant's assertion that  they  lacked  knowledge
of his duty performance and performance-based potential.  His  senior  rater
only expresses his personal belief that the applicant was in the  "top  41.6
percent" and  that  he  "would  have  made  an  outstanding  colonel."   The
applicant has failed to meet his burden of providing sufficient evidence  of
a probable material error or injustice requiring  the  Board  to  direct  or
recommend any military record correction.

The Air Force has consistently maintained  that  the  language  of  the  MOI
cited in the Berkley  v.  United  States  case  is  not  a  constitutionally
objectionable  classification  and  creates  no  benefits  of  burdens   for
competitors in the  board  processes.   Absent  the  Berkley  decision,  the
applicant has failed to offer evidence he took any  affirmative  actions  to
discover or challenge the alleged defective EEO language.  His  claim  comes
at the expense of those who vigorously pursued a perceived wrong and  it  is
well settled in law that an individual cannot sit idly  on  his  rights  and
not be held accountable for the effects of time until  the  courts  rule  in
favor of another having the same claim.  The Board's focal point  should  be
on the point in time the individual  discovered  or  reasonably  could  have
discovered, the existence of the error or injustice, in 1993,  and  not  the
date of the Berkley decision.  The error alleged occurred during  the  CY93A
colonel selection board, yet his  filing  was  well  beyond  the  three-year
statutory limit.

The JAG evaluation is at Exhibit C.

AFPC/DPPPOO recommends denial.  DPPPOO  states  that  insufficient  evidence
has  been  presented  in  regard  to  the  applicant's  request  for  direct
promotion.  An officer may be qualified for promotion, but, in the  judgment
of a selection board, he may not be the best qualified  of  those  available
for the limited number of vacancies.  The board's prerogative should not  be
usurped  except  under  extraordinary  circumstances.   To  grant  a  direct
promotion  would  be  unfair  to  all  other  officers  who  have  extremely
competitive records and also did not get promoted.  Both  Congress  and  DoD
have made clear their intent  that  errors  ultimately  affecting  promotion
should be resolved through the  use  of  Special  Selection  Boards  (SSBs).
Without access to all the competing records and a review of  their  content,
we believe sending approved cases to SSBs for  remedy  is  the  fairest  and
best practice.

The DPPPOO evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his previous contentions and states  that  neither  his
new supervisor or senior rater knew what he had  accomplished  since  August
1992 because his previous supervisor had departed  for  his  new  assignment
and never had the opportunity to relay his accomplishments  to  the  interim
commander.  Colonel  W---  states"...I  did  not  have  the  opportunity  to
provide an input to the OPR that was written just prior to his primary  zone
promotion board, and I know there were several projects  omitted  from  that
report."  Finding fault  in  General  H---  and  Colonel  M---'s  memos  for
failure to support his assertion is specious.  Neither can  be  faulted  for
their omission because neither knew they  did  not  have  the  most  current
information to support the awarding  of  a  "DP"  recommendation  since  the
leadership changed three times.  It is not  an  error  to  make  a  decision
based upon the information available.

The JAG advisory confirms his assertion of the relevance of the  Berkley  v.
United States case in his application.  JAG further implies that because  he
was not a participant in the  Berkley  case,  he  is  not  entitled  to  the
court's ruling of equal protection  under  the  law.   The  JAG  implication
should be dismissed.  The court  provided  its  ruling  and  the  government
declined to appeal the decision.  It was not  'alleged'  defective  language
as JAG indicates, it was defective language.  He did challenge  the  MOI  in
his December 1999 application.   The  MOI  was  a  violation  of  the  Fifth
Amendment right to equal protection under the  law,  produced  a  heightened
awareness in the board, created a bias in favor  of  minorities  and  women,
and had a definite impact on the promotion rates for minorities  and  female
officers--resulting in promotion rates higher than the board average.

An SSB  cannot  fairly  assess  his  record  for  promotion  because  it  is
impossible to recreate the atmosphere which would have been  in  effect  had
his supervisor not been fired.  He  had  worked  for  Colonel  W---  for  18
months in 3 different positions.  He could have convinced the  senior  rater
that he was the most deserving of a DP recommendation.  To  provide  a  full
measure of relief, he requests direct promotion because he believes  an  SSB
cannot fairly assess his promotion status.

In support of his  request,  applicant  provided  a  personal  statement,  a
supporting statement, selection rate data, and  a  copy  of  his  OSB.   His
complete submission, with attachments, 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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice that would warrant his direct  promotion  to
the grade of colonel.  Regarding his contentions related  to  the  promotion
recommendation process and the assessment of  his  promotion  potential,  we
note that this issue  has  been  previously  addressed  by  this  Board  and
evidence has not been presented nor are  we  persuaded  by  his  assertions,
that reversal of the previous decision regarding this matter  is  warranted.


4.  Notwithstanding  the  above,  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  be  promoted  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.  We considered his request for a direct  promotion;  however,  it  is
our  opinion  that  direct  promotion   should   only   be   granted   under
extraordinary circumstances and the  applicant  has  provided  no  evidence,
which would substantiate a direct promotion.   Therefore,  we  believe  that
consideration by a duly appointed SSB is  the  fairest  and  most  equitable
resolution.

5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

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 Boards (SSBs) for the Calendar Years 1993A  through  1997B
Central Colonel Selection Boards.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2003-
01672 in Executive Session on 12 Jan 04, under the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. James W. Russell III, Member
      Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Apr 03.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, USAF/JAG, dated 16 Jun 03.
    Exhibit D.  Letter, AFPC/DPPPOO, dated 18 Aug 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Sep 03.
    Exhibit F.  Letter, Applicant, dated 3 Oct 03, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair
AFBCMR BC-2003-01672




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 (SSBs) for the Calendar Years 1993A through
1997B Central Colonel Selection Boards.






                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards
Agency