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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