RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-01721

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  1 Dec 05


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to the grade of major and be  allowed  to  continue  his  Air
Force career.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The Calendar Years 1997 and 1998 (CY97 & CY98) Medical Service  Corps  (MSC)
Major Selection Boards  were  given  formal  instructions  which  introduced
subjective consideration of race  and  gender  in  violation  of  his  equal
protection rights.

Applicant’s complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was considered and not selected for  promotion  to  the  grade  of
major by the CY97D and CY98C Major MSC Central Selection Boards.

Based on his two promotion nonselections, he  was  honorably  discharged  on
28 February 1999.  He completed 12 years, 8 months, and 24  days  of  active
service.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPO states the applicant met the CY97D Major  MSC  Central  Selection
Board as an IPZ eligible.  Although he also met the CY98C Major MSC  Central
Selection Board, the Memorandum of Instruction (MOI)  had  been  changed  to
delete the verbiage in question.

The AFPC/DPPPO evaluation is at Exhibit C.

AF/JAA recommends the application be  denied  as  untimely  and  states,  in
part, that  there  is  no  excuse  for  applicant’s  untimely  filing.   The
language in the MOI existed since 1993, and was discoverable at the time  it
occurred in 1997.   Applicant  has  failed  to  exercise  due  diligence  as
required by law and has instead relied on the actions of others  to  provide
a basis and theory for recovery long after a reasonable period for  pursuing
a claim had passed.  Further, his request for SSB for the CY98  major  board
should be denied since the MOI was revised prior to the  convening  of  that
board.  The revised MOI used by the CY98 major board did not  create  either
a constitutionally objectionable classification or benefits or  burdens  for
competitors in the board process.  There is no legal basis to challenge  the
revised MOI section and the applicant has failed to  demonstrate  any  error
or injustice.

The AF/JAA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 24  August  2004  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 not timely filed; however,  we  believe  that  the
applicant had no reason to file an appeal on the issue  under  consideration
until the  court’s  findings  were  published.   Therefore,  it  is  in  the
interest of justice to excuse the failure to timely file.

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  Board  (SSB)  for  the  CY97D
Major MSC Central Selection Board.  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.    The MOI was revised to remove the  language  cited  by  the  court  in
Berkley and was not in  use  during  the  CY98C  selection  board.   In  the
absence of evidence that his records were in error or unjust at the time  of
his consideration by the CY98C 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  for  the  CY98C  Major  MSC  Central
Selection Board.

5.    With respect to his request to be allowed to continue  his  Air  Force
career, if he is selected for promotion by the SSB, he  should  submit  this
request at that time.

6.    Notwithstanding the above, we find insufficient relevant evidence  has
been presented to  demonstrate  the  existence  of  error  or  injustice  to
warrant the  applicant’s  promotion  to  the  grade  of  major  through  the
correction of records process.  In this  regard,  the  Board  observes  that
officers compete for promotion under the whole person concept  whereby  many
factors are carefully assessed by  selection  boards.   An  officer  may  be
qualified for promotion but, in the judgment of  a  selection  board  vested
with the discretionary authority to make the  selections,  may  not  be  the
best qualified of those  available  for  the  limited  number  of  promotion
vacancies.  Therefore, in the absence of evidence that he would have been  a
selectee,  a  duly  constituted  selection  board  applying   the   complete
promotion criteria is in the  most  advantageous  position  to  render  this
vital determination, and that its  prerogative  to  do  so  should  only  be
usurped under extraordinary circumstances.

7.  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 major  by  Special
Selection Board (SSB) for the Calendar  Year  1997D  Major  Medical  Service
Corps (MSC) Central Selection Board.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2004-01721
in Executive Session on 2 May 2005, 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 4 Feb 04, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 28 Jul 04.
    Exhibit D.  Letter, AF/JAA, dated 6 Aug 04.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Aug 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair


AFBCMR BC-2004-01721




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 XXXXXXX, XXXXXXX, be considered for promotion to the grade of
major by Special Selection Board (SSB) for the Calendar Year 1997D Major
Medical Service Corps (MSC) Central Selection Board.









JOE G. LINEBERGER

Director

Air Force Review Boards Agency