RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-02455

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  2 Jan 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be considered for promotion to the grade of lieutenant  colonel  by
a Special Selection Board (SSB)  that  will  use  a  revised  Memorandum  of
Instruction (MOI) that does not include equal opportunity instructions,  for
the Calendar Year 1993A (CY93A) Line of the  Air  Force  Lieutenant  Colonel
Selection Board, with his record as it appeared before  the  original  CY93A
board.

2.    If he is selected for promotion, his  records  be  corrected  to  show
that he did not  retire  under  the  Temporary  Early  Retirement  Authority
(TERA), but served the required three years  time-in-grade  and  retired  in
the grade  of  lieutenant  colonel  upon  the  completion  of  20  years  of
commissioned service.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The Secretary of the Air Force’s Memorandum of Instruction (MOI)  which  was
read to the selection  board  contained  an  equal  opportunity  instruction
which violated his constitutional 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
lieutenant colonel by the CY93A and CY94A Line  Lieutenant  Colonel  Central
Selection Board.

Based on his two promotion nonselections, he was retired  in  the  grade  of
major on 1 July 1995, under the TERA.

_________________________________________________________________


AIR FORCE EVALUATIONS:

AFPC/DPPPO states that applicant met the CY93A  and  CY94A  Line  Lieutenant
Colonel Central Selection Boards as an IPZ and APZ  eligible,  respectively.
Both  boards  used  the  Memorandum  of  Instruction  (MOI)  that  contained
language found to be unconstitutional.

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 1993.   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:

Contrary to the evaluation’s assertion, his request  is  timely  filed.   He
has been following the Berkley v. U.S., Alvin  v.  U.S.,  and  Christian  v.
U.S. court cases for some time; however, it was not until early 2004 that  a
decision was rendered  by  the  courts.   He  was  aware  of  the  contested
language as early as 1990 and always felt  it  was  reverse  discrimination;
however, he knew the door was shut as he watched his peer’s appeals  to  the
MOI be denied.  Even after the Air Force discontinued  using  the  contested
language in the MOI, they would not admit  it  was  unjust.   Therefore,  he
knew it would be futile for him to approach the  appeal  prior  to  a  court
decision.


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.    With respect to his request for retirement in the grade of  lieutenant
colonel upon the completion of 20 years of commissioned service,  if  he  is
selected for promotion by either of the SSBs, 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  lieutenant
colonel by Special Selection Boards (SSBs) for the Calendar Years 1993A  and
1994A Line Lieutenant Colonel Central Selection Boards.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-00546
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 1 Aug 04.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 27 Aug 04.
    Exhibit D.  Letter, AF/JAA, dated 13 Sep 04.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Sep 04.
    Exhibit F.  Letter, Applicant, dated 18 Sep 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair

AFBCMR BC-2004-02455




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 lieutenant
colonel by Special Selection Boards (SSBs) for the Calendar Years 1993A and
1994A Line Lieutenant Colonel Central Selection Boards.








JOE G. LINEBERGER

Director

Air Force Review Boards Agency