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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