RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-01231

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  17 Oct 05


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be considered for promotion to the grade of colonel  by  a  Special
Selection Board (SSB) for the Calendar Year 1995B (CY95B) Central  Selection
Board, with his record as it appeared before the original CY95B board.

2.    If he is not selected  for  promotion  by  the  SSB,  his  records  as
corrected by the Air Force Personnel Center (AFPC) on  1 November  1996,  be
considered for promotion to the grade of colonel by an  SSB  for  the  CY95B
Colonel Central Selection Board.

3.    If his  request  for  two  reconsiderations  cannot  be  granted,  his
records be placed before the Board as they met the SSB  he  was  granted  in
1996.

4.    If he is selected for promotion, his  records  be  corrected  to  show
that he retired on 1 January 2003, with all back pay and allowances.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

He was not selected for promotion to the  grade  of  colonel  by  the  CY95B
board.  He subsequently met an  SSB  after  AFPC  corrected  errors  in  his
records, to include an erroneous Promotion Recommendation  Form  (PRF),  and
was  not  selected.    The  Secretary  of  the  Air  Force   Memorandum   of
Instruction  (MOI)  which  was  read  to  each  board  contained  an   equal
opportunity instruction which has been  found  by  federal  courts  to  have
violated constitutional rights of officers meeting those boards.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________



STATEMENT OF FACTS:

Applicant was considered and not selected for  promotion  to  the  grade  of
colonel by the CY95B, CY96B, and CY97B Colonel Central Selection Boards.

On 18 November 1996, he was considered and not  selected  for  promotion  to
the grade of colonel by an SSB for the CY95B board.

On 1 August  1998,  he  voluntarily  retired  in  the  grade  of  lieutenant
colonel.  He completed 21 years, 9 months, and 16 days of active service.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPO states the applicant met  the  CY95B  Colonel  Board  as  an  IPZ
eligible.  In addition, he met the CY96B and CY97B boards as  an  above-the-
promotion zone (APZ) eligible.  On 18 November 1996, he met an SSB  for  the
CY95B Colonel Board.  Since the original record has been corrected,  he  has
no entitlement to an SSB for the record that met the original  CY95B  board,
but he may be granted an SSB  with  the  record  that  met  the  CY95B  SSB.
Further, if he  is  selected  for  promotion,  they  will  provide  him  the
procedures to correct his retirement date at that time.

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 1995, 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.

The AF/JAA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Until  the  court   in   Berkley   declared   the   MOI   language   to   be
unconstitutional, no error existed.  The language had  long  been  used  and
was, so far as the Air Force was concerned, indisputably proper.  Since  his
application was filed within three years of  the  Berkley  decision,  it  is
timely filed.  Further, even if the Board  accepts  AF/JAA’s  argument  that
the error existed at the time his boards met, the error was  not  reasonably
discoverable  until   the   court’s   decision   that   the   language   was
unconstitutional.  The error existed  in  the  MOI  which  is  not  commonly
provided to the general Air Force population.

Applicant’s complete response 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,  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).   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.    Notwithstanding the above, since the applicant’s record that  met  the
original CY95 board has been corrected, we  find  no  basis  upon  which  to
recommend an SSB with the uncorrected record that  met  the  original  CY95B
board.

5.    With respect to his request that his record be corrected to show  that
he retired on 1 January 2003, rather 1 August 1998, if he  is  selected  for
promotion by the SSB, he should submit this request at that time.

________________________________________________________________

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 Board (SSB) for the Calendar Years 1995B, 1996B and  1997B
Colonel Central Selection Boards.

________________________________________________________________





The following members of the Board considered  Docket  Number  BC-2004-01231
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 11 Apr 04, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 10 Jun 04.
    Exhibit D.  Letter, AF/JAA, dated 21 Jun 04.
    Exhibit E.  Letter, SAF/MRBR, dated 16 Jul 04.
    Exhibit F.  Letter, Applicant, dated 14 Aug 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair


AFBCMR BC-2004-01231




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, be considered for promotion to the grade of colonel by
Special Selection Board (SSB) for the Calendar Years 1995B, 1996B and 1997B
Colonel Central Selection Boards.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency