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AF | BCMR | CY2006 | BC-2006-00492
Original file (BC-2006-00492.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00492
            INDEX NUMBER:  131.00
      XXXXXXXXXXXX     COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  14 Sep 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered for promotion to the grade of lieutenant  colonel  by
special selection board (SSB) for  the  Calendar  Year  1999A  (CY99A)
Lieutenant Colonel Central Selection Board with the language regarding
equal employment opportunity (EEO) removed from the  board  memorandum
of instruction (MOI).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The EEO language included in the MOI for the CY99A Lieutenant  Colonel
Central Selection Board is unconstitutional and resulted in an “unfair
bias” against him.  He has applied for a copy  of  the  MOI  and  will
forward it as soon as it is received.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant served on active duty in the Air Force from  Jan  83  to
Feb 03 and retired in the grade of major.  He was considered  and  not
selected for promotion to the grade of lieutenant colonel by the CY99A
Lieutenant Colonel Central Selection Board.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO recommends denial of the applicant’s  request.   They  note
that the language in the MOI provided to central selection boards  and
special selection boards was changed in 1998 to  delete  the  language
cited by the applicant.  Therefore, the applicant’s request  does  not
fall under the Berkeley court decision.

The complete evaluation is at Exhibit C.

HQ USAF/JAA also recommends denial of the applicant’s  request.   They
note that the language cited by the applicant was the subject  of  the
case Berkley v. United States and was discontinued for use  in  boards
beginning in 1998.  There is no evidence nor  any  reason  to  believe
that the MOI used at the  applicant’s  board  in  1999  contained  any
language giving rise to an error or injustice.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
24 Mar 06 for review and comment within 30 days.  To date, a  response
has not been received.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an  error  or  injustice.   Therefore,  in  the  absence  of
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2006-
00492 in Executive Session on 2 May 2006, under the provisions of  AFI
36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. John E. B. Smith, Member
      Ms. Dorothy P. Loeb, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Feb 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC?DPPPO, dated 6 Mar 06.
    Exhibit D.  Memorandum, HQ USAF/JAA, dated 20 Mar 06.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Mar 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair

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