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AF | BCMR | CY2007 | BC-2007-00307
Original file (BC-2007-00307.doc) Auto-classification: Approved

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2007-00307

      XXXXXXXX   COUNSEL:  GRANT LATTIN

            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  4 August 2008

_________________________________________________________________

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.

_________________________________________________________________

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  selection   board   required   differential
treatment of officers, based on their race and gender.

In support of the appeal, the applicant submits  a  copy  of  the  contested
CY97C instructions and his personal statement.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was considered and not selected for  promotion  by  the  CY97C
Lieutenant Colonel Line Central Selection Board.

On 31 July 2002, he was released from active duty  and  transferred  to  the
Nebraska Air National Guard  (NEANG).   He  retired  from  the  NEANG  on  1
September 2006.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPO, states the applicant  met  the  CY97C  Lieutenant  Colonel  Line
Central Selection Board and was not selected.

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:

The applicant’s counsel provided a response that 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, 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).   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.    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  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-2007-00307
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 22 Jan 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 16 Feb 07.
    Exhibit D.  Letter, AF/JAA, dated 29 Mar 07.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Mar 07.
    Exhibit F.  Letter, Counsel, dated, 9 Apr 07.




                                   THOMAS S. MARKIEWICZ
                                   Chair
AFBCMR BC-2007-00307




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 XXXXXXXX, 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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