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AF | BCMR | CY2004 | BC-2003-03400
Original file (BC-2003-03400.doc) Auto-classification: Approved

                            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.

_________________________________________________________________

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 was considered and not selected for promotion by the CY94 (in-
the-promotion zone  (IPZ)),  CY95A,  CY96A,  CY97C,  and  CY98B  Major  Line
Central Selection Boards.

On 1 January 2004, he retired in the grade of captain.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The Officer Promotion Branch, AFPC/DPPPO, states that the applicant met  the
CY94 (IPZ), CY95A, CY96A, CY97C, and  CY98B  Major  Line  Central  Selection
Boards.

The AFPC/DPPPO evaluation is at Exhibit C.

The Administrative Law Division, AF/JAA, states, in part, that if the  Board
determines  there  has  been  an  error  or  injustice,  it  may  grant  the
applicant’s  request.   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/JAA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 26 November 2003 for review and response within 30 days.  However, as  of
this date, this office has received no response.

_________________________________________________________________

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 Boards (SSBs).   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.

4.  Should the applicant be selected  for  promotion  by  an  SSB,  he  will
automatically be reconsidered for  Professional  Military  Education  (PME).
He will also be offered the opportunity for reinstatement to active duty.

_________________________________________________________________

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 major  by  Special
Selection Boards (SSBs) for the Calendar  Years  1994  through  1998B  Major
Line Central Selection Boards.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-03400
in Executive Session on 5 January 2004, under  the  provisions  of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, 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 7 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 31 Oct 03.
    Exhibit D.  Letter, AF/JAA, dated 3 Nov 03.
    Exhibit E.  Letter, SAF/MRBR, dated 26 Nov 03.




                                   THOMAS S. MARKIEWICZ
                                   Chair

AFBCMR BC-2003-03400




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 major by
Special Selection Boards (SSBs) for the Calendar Years 1994 through 1998B
Major Line Central Selection Boards.









JOE G. LINEBERGER

Director

Air Force Review Boards Agency

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