RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03331
                                    (Case 2)
            INDEX CODE:  131.00, 131.01

            COUNSEL:  MR. THOMAS C. HOUCK

            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  30 APRIL 2006

_________________________________________________________________


APPLICANT REQUESTS:

Reinstatement  to  active  duty,  with  back  pay,  and   constructive
promotion to the grade of lieutenant colonel.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The Secretary of the Air Force’s Memorandum of Instruction (MOI)  used
at  his  CY92C  and  CY93B  Major  Line   Central   Selection   Boards
unconstitutionally required members to consider race and  gender  when
selecting officers for  promotion  to  major.   As  a  result  of  the
improper instruction, he was  passed  over  twice  for  promotion  and
involuntarily discharged  from  the  Air  Force.   He  should  receive
constructive promotion consideration 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.

He is uniquely qualified for a  return  to  active  duty  due  to  his
continued active military service through the Air National Guard.  But
for the improper instruction, it is probable that he  would  presently
be, at least, a regular commissioned  lieutenant  colonel,  having  20
years of active duty service.

In support of his request, applicant  submits  a  personal  statement,
counsel’s statement, copies of the Memorandum of Instructions for  the
CY92C and CY93B selection boards,  an  affidavit  in  support  of  his
application, and a copy of a U.S. Court of  Appeals  for  the  Federal
Circuit  decision.   The   applicant’s   complete   submission,   with
attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant was considered and  nonselected  for  promotion  in-the-
promotion zone (IPZ) by  the  Calendar  Year  (CY)  1992C  Major  Line
Central Selection Board, which convened on 7 December 1992; and, above-
the-promotion zone (APZ) by the CY93B  Major  Selection  Board,  which
convened on 6 December 1993.

On 31 August 1994, the applicant was honorably  discharged  under  the
provisions  of  AFR  36-12  (Involuntary   Discharge:    Nonselection,
Permanent Promotion).  He had completed a total of 12 years, 10 months
and 18 days and was serving in the grade of captain at the time of his
discharge.

On 20 September 1994, the applicant enlisted, in the grade of sergeant
(E-5), in the Army National Guard of Texas and as  a  Reserve  of  the
Army.   He  was  honorably  discharged  on   17   November   1995   to
enlist/reenlist in another component.

Information extracted from the Military Personnel Data System (MilPDS)
reveals that, effective 18 November 1995, the applicant was a  student
airman with the Air National Guard.

On 26 September 1997, the applicant enlisted, in the  grade  of  staff
sergeant (E-5), in the Florida Air National Guard  (FLANG)  and  as  a
Reserve of  the  Air  Force  for  a  period  of  six  years.   He  was
progressively promoted to the grade of master sergeant  (E-7)  in  the
FLANG and as a Reserve of the Air Force, with an  effective  date  and
date of rank of 9 February  2001.   On  19  May  2004,  the  applicant
submitted a second extension of his 26 September  1997  enlistment  in
order to meet  service  retainability  for  transfer  to  the  Retired
Reserve.  His request was approved and his established 1 February 2005
date of separation was extended to 1 September 2005.
_________________________________________________________________

AIR FORCE EVALUATIONS:

HQ AFPC/DPPPO states the applicant has two nonselections for promotion
to the grade of major by  the  CY92C  and  CY93B  Major  Line  Central
Selection Boards. The HQ AFPC/DPPPO evaluation is at Exhibit C.

HQ  USAF/JAA  recommends  the  application  be  denied  based  on  the
applicant’s failure to file timely.   JAA  states  that  there  is  no
excuse for the applicant’s late filing and complaint of the Memorandum
of Instruction (MOI) language that has existed since 1992.

JAA indicates that 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 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
HQ USAF/JAA evaluation is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The  applicant  reviewed  the  advisory  opinions  and  indicates  his
application has been submitted within three years of when the error or
injustice was first discovered or should have  been  discovered.   The
first time he had any  notice  of  or  reason  to  inquire  about  the
objectionable provisions  of  the  MOI  used  at  both  of  his  major
selection boards was in August 2003 when he  was  informed  about  the
Berkley class action suit.

Counsel reviewed the advisory opinions and disagrees  with  the  legal
analysis and recommendation of JAA concerning the untimeliness of  the
applicant’s appeal.  Counsel states that, irrespective of whether  the
application was filed within three years of the applicant’s actual  or
imputed date of discovery of the injustice for which he seeks redress,
the applicant’s  appeal  should  be  considered  in  the  interest  of
justice.  The merits of the application are indisputable as  is  clear
from JAA’s advisory opinion which concedes that the Air Force is bound
by the Berkley court opinion which found the same MOI  provisions,  as
used by the  selection  boards  passing  over  the  applicant,  to  be
unlawfully  discriminatory  because  the  “MOI  requires  differential
treatment of officers based on their race or gender.”   The  applicant
has not limited his requested relief to reinstatement to active  duty,
constructive promotion and back pay as  suggested  by  JAA.   Although
that is the most favorable ruling, the applicant also  recognizes  the
Board’s authority and responsibility to “fashion relief appropriate to
the facts and circumstances of each case.”

In support of his request, applicant  submits  a  personal  statement,
with  attachments,  and   counsel’s   statement,   with   attachments.
Applicant and counsel’s complete submission, with attachments,  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) for the CY97D
Major MSC Central Selection Board.  The  applicant  contends  that  he
should receive  constructive  promotion  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 regard to his  request  for  reinstatement  to  active  duty,
should the applicant be selected for promotion to the grade  of  major
by an SSB, he will be offered the  opportunity  for  reinstatement  to
active duty.

5.  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.

6.  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 Boards (SSBs) for the Calendar Years  1992C
and 1993B Major Line Central Selection Boards.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 12 July 2005, under the  provisions  of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Chair
                  Ms. Kathleen F. Graham, Member
              Mr. James W. Russell III, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary  evidence  was  considered  in  connection  with
AFBCMR Docket Number BC-2004-03331.

   Exhibit A.  DD Form 149, dated 7 Oct 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPO, dated 22 Dec 04.
   Exhibit D.  Letter, HQ USAF/JAA, dated 21 Jan 05.
   Exhibit E.  Letter, SAF/MRBR, dated 4 Feb 05.
   Exhibit F.  Letters from Applicant, dated 28 Feb 05, w/atchs,
                   and Counsel, dated 28 Feb 05, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair




AFBCMR BC-2004-03331




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
1992C and 1993B Major Line Central Selection Boards.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency