RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-00945
INDEX CODE: 131.01
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 30 September 2007
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be considered for promotion to the grade of lieutenant colonel by a
Special Selection Board (SSB) for the Calendar Year 1997C (CY97C)
Lieutenant Colonel (Line) Central Selection Board.
_________________________________________________________________
APPLICANT CONTENDS THAT:
As a white male, he was the victim of racial and gender discrimination
since the procedures used by the promotion board were unconstitutional. In
Berkley v. United States, as well as several Court cases, it was ruled that
similar Equal Employment Opportunity (EEO) language was unconstitutional.
In support of the appeal, applicant submits his former counsel’s brief, a
copy of the Memorandum of Instruction (MOI), EEO statistics, and a personal
declaration.
Applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant was appointed a second lieutenant and entered active duty on
14 April 1981. He was progressively promoted to the grade of major. He
was considered and not selected for promotion to the grade of lieutenant
colonel (IPZ) by the CY97C selection board. On 1 December 2004, he
voluntarily retired for years of service.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPPO states the applicant met the CY97C Lieutenant Colonel LAF
Central Selection Board as an IPZ eligible. The DPPPO evaluation is at
Exhibit C.
USAF/JAA states the applicant cites as authority Berkley v. United States,
which scrutinized the specific language used in Air Force selection boards,
including the board that did not select the applicant. The Air Force has
consistently maintained that the challenged language does not constitute
constitutionally objectionable classifications and creates no benefits or
burdens for competitors in the board process. Nevertheless, in a split
decision, the court in Berkley concluded that because “the MOI requires
differential treatment of officers based on their race or gender, it must
be evaluated under a strict scrutiny analysis. The government declined to
appeal this part of the decision, therefore, the Air Force is bound by the
court’s conclusion. Since he recently retired from active duty, the
Board’s three-year statute of limitations has not yet tolled and if the
Board determines an error or injustice exists, the Board may grant his
request.
The JAA evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The Air Force is “bound by the court’s conclusion” in Berkley v. United
States, holding that the Air Force EEO language was unconstitutional. The
advisory also concedes that the relief requested is not barred by the
statute of limitation.
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 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 a Special Selection Board (SSB). The applicant
contends that he was the victim of reverse discrimination due to the use of
gender and racial classifications by the Secretary of the Air Force (SAF)
in his MOI to the CY97C Central Lieutenant Colonel Selection Board, which
violated his Fifth Amendment rights under the U.S. Constitution. In
support of his request, he cites the recent U.S. Court of Appeals for the
Federal Circuit decision 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.
_________________________________________________________________
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 Board (SSB) for the Calendar Year 1997C
Lieutenant Colonel Line Central Selection Board.
_________________________________________________________________
The following members of the Board considered Docket Number BC-2006-00945
in Executive Session on 17 August 2006, under the provisions of AFI 36-
2603:
Mr. Michael K. Gallogly, Panel Chair
Mr. Joseph D. Yount, Member
Ms. Mary C. Puckett, Member
All members voted to correct the records, as recommended. The following
documentary evidence was considered:
Exhibit A. DD Form 149, dated 15 Mar 06, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPPO, dated 10 Apr 06.
Exhibit D. Letter, AF/JAA, dated 24 Apr 06.
Exhibit E. Letter, SAF/MRBR, dated 28 Apr 06.
Exhibit F. Letter, Counsel, dated 2 May 06.
MICHAEL K. GALLOGLY
Panel Chair
AFBCMR BC-2006-00945
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
lieutenant colonel by Special Selection Board (SSB) for the Calendar Year
1997C Lieutenant Colonel Line Central Selection Board.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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