RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2006-00462

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  18 August 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered for  promotion  to  the  grade  of  colonel  by  a  Special
Selection Board (SSB) for the Calendar Year 1992A  (CY92A)  Colonel  Central
Selection Board, and if selected, he receive all back pay and be retired  in
the grade of colonel on 1 July 2001, upon the  completion  of  30  years  of
service, with all back pay, allowances, and re-computation  of  his  retired
pay based on the higher grade and  additional  years  of  service.   In  the
alternative, or if he is not selected, he be  considered  for  retention  in
the grade of lieutenant colonel by an  SSB  for  the  1993  Selective  Early
Retirement Board (SERB), and if selected for retention, he be retired  on  1
July 1999, upon the completion of 28 years of service.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The boards  were  given  formal  instructions  which  introduced  subjective
consideration of race and  gender  in  violation  of  his  equal  protection
rights.

A decision by the U.S. Court of Appeals for the  Federal  Circuit  that  the
Secretary of the Air Force’s  Memorandum  of  Instruction  (MOI)  concerning
consideration  of  minority  and  female  officers,  required   differential
treatment of officers based on their race and gender.  In view of this,  and
since these instructions were used during the CY92A board and 1993 SERB,  as
a white male officer, he should receive SSB consideration for promotion,  or
in the alternative, or if not selected, SSB consideration for  retention  by
the 1993 SERB.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________



STATEMENT OF FACTS:

Applicant was considered and not selected for  promotion  to  the  grade  of
colonel CY92A Colonel Central Selection Board.

On 20 January 1993, he was considered for retention  by  a  Selective  Early
Retirement  Board  (SERB)  and  was  not  selected.   Based  upon  the  SERB
decision, he was retired on 1 July 1993.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPO provides no recommendation  and  states  the  applicant  met  the
CY92A Colonel Central Selection Board as an IPZ eligible.  If  selected  for
promotion, they recommended he reapply through the AFBCMR for retirement  in
the higher grade.

The AFPC/DPPPO evaluation is at Exhibit C.

HQ  AFPC/DPPRRP  reviewed  this  application   and   did   not   provide   a
recommendation, stating, in part, effective 5 November 1990,  Title  10  USC
638a,  provided  the  Secretary  of  Defense  with  enhanced  authority  for
selective early retirement.  This law states that  lieutenant  colonels  may
be considered for selective early retirement by a board if they have  failed
selection only one time.  On 16 October 1992, the AF Deputy Chief  of  Staff
for Personnel announced that a SERB would convene on 20  January  1993.   As
an exception to policy, SERB-eligible officers were  allowed  for  voluntary
retirement effective 1 October 1993  or  earlier.   The  applicant  did  not
request to voluntarily retire on 1 October 1993 or an earlier date,  so  his
records met the SERB.  The applicant fit the eligibility criteria  for  SERB
consideration as a lieutenant colonel as of the  board  date  of  20 January
1993.  The SERB did  not  recommend  retention  and,  based  upon  the  SERB
decision, he was retired on 1 July 1993.  If he meets an SSB for  the  CY92A
Colonel Central Selection Board and is selected for  promotion  to  colonel,
he would not have been eligible for the 1993 SERB or any  later  SERB  prior
to his mandatory separation date of 31 August 2001.  However, if he  is  not
selected for promotion to colonel, he would still be eligible for  the  1993
SERB.  If the SSB for the SERB selects him for early  retirement,  he  would
still retire on 1 July 1993 and if  selected  for  retention,  his  date  of
separation would have remained 31 August 1999 (28 years).

HQ AFPC/DPPRRP’s complete evaluation, with attachments, is at Exhibit D.

The General Law Division,  AF/JAA,  states,  in  part,  that  if  the  Board
determines  there  has  been  an  error  or  injustice,  it  may  grant  the
applicant’s  request.   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  court’s
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 AF/JAA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Applicant does not take  issue  with  the  evaluations  and  notes  that  he
reversed/transposed the high year of tenure (HYT) figures  for  colonel  and
lieutenant colonel.

Applicant’s complete response is at Exhibit G.

_________________________________________________________________

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  CY92A
Colonel Central Selection Board.  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 to change his retirement date,  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 Year  1992A  (CY92A)  Colonel
Central Selection Board.

It is further recommended that, if he is not selected for promotion  by  the
SSB for the CY92A Colonel Central Selection  Board,  he  be  considered  for
retention by a Special  Board  for  the  Selective  Early  Retirement  Board
(SERB), which convened on 20 January  1993,  using  the  modified  selection
process  the  Secretary  of  the  Air  Force  prescribed  for   specifically
designated boards and which was slightly modified by the  Federal  Court  of
Claims in Berkley.  Specifically, that while all benchmark  records  remain,
his record need only tie  or  beat  one  retained  benchmark  record  to  be
considered retained.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-00462
in Executive Session, 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 10 Feb 06, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memo, AFPC/DPPPO, dated 6 Mar 06.
    Exhibit D.  Memo, AFPC/DPPRRP, dated 13 Mar 06, w/atchs.
    Exhibit E.  Memo, AF/JAA, dated 28 Mar 06.
    Exhibit F.  Letter, SAF/MRBR, dated 7 Apr 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair

A
AFBCMR BC-2006-00462




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, XXXXXXX, be considered for promotion to  the  grade  of
colonel by Special  Selection  Board  (SSB)  for  the  Calendar  Year  1992A
Colonel Central Selection Board.

      It is further directed that, if he is not selected  for  promotion  by
the SSB for the CY92A Colonel Central Selection Board, he be considered  for
retention by a Special  Board  for  the  Selective  Early  Retirement  Board
(SERB), which convened on 20 January  1993,  using  the  modified  selection
process  the  Secretary  of  the  Air  Force  prescribed  for   specifically
designated boards and which was slightly modified by the  Federal  Court  of
Claims in Berkley.  Specifically, that while all benchmark  records  remain,
his record need only tie  or  beat  one  retained  benchmark  record  to  be
considered retained.









JOE G. LINEBERGER

Director

Air Force Review Boards Agency