RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2006-03185

      XXXXXXXXXXX      COUNSEL:  NONE

            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  19 February 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His Date of Rank  (DOR)  for  promotion  to  the  grade  of  major  be
adjusted to 1 January 1999, and he receive SSB consideration  for  promotion
to the grade of lieutenant colonel, or in the alternative,

2.    He be considered for promotion to the grade  of  major  by  a  Special
Selection Board (SSB) using a modified selection process  for  the  Calendar
Year 1997E (CY97E) Major JAG Central Selection Board, and  if  selected,  he
receive SSB consideration for promotion to the grade of lieutenant colonel.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

He should receive SSB consideration for promotion based  on  a  decision  by
the U.S.  Court  of  Appeals  for  the  Federal  Circuit  that  the  special
instructions employed by his  in-the-promotion-zone  (IPZ)  selection  board
required differential  treatment  of  officers,  based  on  their  race  and
gender.

In support of the appeal, the applicant submits  a  copy  of  AFBCMR  Docket
Number BC-2004-02455.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving on active duty in the grade of major.



The applicant was considered IPZ and  not  selected  for  promotion  by  the
CY97E Major JAG Central Selection Board.   He  was  selected  for  promotion
above-the-promotion-zone (APZ) by the  CY99A  Major  JAG  Central  Selection
Board.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPO, states the applicant met  the  CY97E  (IPZ)  Major  JAG  Central
Selection Board and was not selected.  He was selected for promotion to  the
grade of major by the CY99 Major JAG Central Selection Board.

The AFPC/DPPPO evaluation is at Exhibit C.

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 D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 12 January  2007  for  review  and  response  within  30  days.
However, as of this date, this office has received no response.

The 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 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.    Notwithstanding the above, we find insufficient relevant evidence  has
been presented to demonstrate the existence of probable error  or  injustice
to warrant adjusting the applicant’s DOR to major as  if  he  were  selected
for promotion by the CY97E Major JAG Central  Selection  Board  through  the
correction of records process.  In this respect,  the  Board  observes  that
officers compete for promotion under the  whole  person  concept  whereby  a
multitude of factors are carefully assessed by the selection  board  members
prior to scoring the record.  In addition, they may  be  qualified  but,  in
the judgment of  selection  board  members  vested  with  the  discretionary
authority to score their records, may not be the  best  qualified  of  those
available for the limited number of promotion  vacancies.   Consequently,  a
direct promotion should be granted only under  extraordinary  circumstances;
i.e., a showing that the officer’s record cannot be reconstructed in such  a
manner so as to permit him/her to  compete  for  promotion  on  a  fair  and
equitable basis; a showing  that  the  officer  exercised  due  diligent  in
pursuing timely and effective relief; and  lastly,  that  had  the  original
errors not occurred, the probability of his  being  selected  for  promotion
would have been extremely high.  We do not find these factors in this  case.
 In view of the foregoing, and in the absence of evidence to  the  contrary,
we find no compelling basis  to  recommend  granting  this  portion  of  the
application.

5.    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 issue(s) 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 Board (SSB) for the  Calendar  Year  1997E  Major  Judge  Advocate
General (JAG) Central Selection Board.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-03185
in Executive Session on 2 July 2007, 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 12 Oct 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 6 Dec 06.
    Exhibit D.  Letter, AF/JAA, dated 9 Jan 07.
    Exhibit E.  Letter, SAF/MRBR, dated 12 Jan 07.




                                   THOMAS S. MARKIEWICZ
                                   Chair
AFBCMR BC-2006-03185




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 major by
Special Selection Board (SSB) for the Calendar Year 1997E Major Judge
Advocate General (JAG) Central Selection Board.








JOE G. LINEBERGER

Director

Air Force Review Boards Agency