RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-03040
                             INDEX CODE:  111.01
      XXXXXXX                    COUNSEL:  MR.  RICHARD BEDNAR
                                 HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be considered by a Special Selection Board  (SSB)  for  promotion  to
the grade of major by the CY95 and CY96 boards.

2.  The Equal  Opportunity  (EO)  language  used  in  those  boards  not  be
utilized by the newly convened SSB.

3.  The SSB use the new procedures approved by  the  Secretary  of  the  Air
Force in the memorandum dated 19 February 2004 when  reconsidering  officers
for promotion due to racial and gender discrimination.

________________________________________________________________

APPLICANT CONTENDS THROUGH COUNSEL THAT:

He met two promotion selection boards  whose  members  received  secretarial
instructions  violating  the  Fifth   Amendment   to   the   United   States
Constitution.  These Boards were instructed to unlawfully consider race  and
gender when selecting officers for promotion  to  major.   Consideration  of
race and gender to classify officers  is  inappropriate  except  under  very
limited circumstances that were not present  within  the  Air  Force.   This
unlawful procedure is contrary to law and constitutes an error or  injustice
warranting a SSB.  This is a classic reverse  discrimination  case.   It  is
generally minorities and females who are the subject of discrimination.   In
this case, it was white males who were the  subject  of  racial  and  gender
discrimination.  A federal appeals court has concluded the Air  Force  could
not use these discriminatory unconstitutional procedures.

In support of his request, the applicant provided a copy of  a  letter  from
his counsel to  the  Board;  email  communiqués,  a  copy  of  his  "As-Met"
Selection Record, Memorandum of  Instructions  and  a  copy  of  an  unsworn
declaration.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned in the Regular Air Force  on  19 August  1984
and was progressively promoted to the grade of captain  effective  and  with
date of rank of 13 June 1988.

The applicant was considered but not selected by the CY95A and  CY96A  Major
Line Central Selection Boards (CSB) which convened  on  5 June  1995  and  4
March 1996 respectively.

On 30 November  1996,  the  applicant  was  honorably  discharged  for  non-
selection for permanent promotion.

He served a total of 12 years, 3 months and 12 days on active duty.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO provides no recommendation.  DPPPO states the applicant  contends
the  board  instructions   contained   an   illegal   and   constitutionally
impermissible  instruction  that  gave  unfair  advantage   to   women   and
minorities (Berkley, et  al.,  v  United  States,  United  States  Court  of
Appeals for the Federal Circuit, Docket Number 01-5057).  The memorandum  of
instructions provided to central selection boards convened  between  January
1990 and June 1998 did contain the same equal  opportunity  clause  and  may
have harmed  officers  meeting  these  boards.   Therefore  the  applicant's
request does fall under the Berkley decision.

The complete DPPPO evaluation is at Exhibit B.

USAF/JAA recommends denial.  JAA  states  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 process.  Nevertheless,  in
a  split  decision,  the  court  in  Berkley  concluded  that  because   the
memorandum of  instructions  requires  differential  treatment  of  officers
based on their race or gender; it must be evaluated under a strict  scrutiny
analysis.  In order to determine whether there has been an equal  protection
violation under the 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.   Though  the
applicant's case otherwise falls within the  ambit  of  Berkley,  there  are
reasons upon which the AFBCMR  could  properly  base  a  decision  that  the
applicant's claim could be denied for  lack  of  timeliness.   Although  the
Board may excuse an untimely filing in the interest of justice,  the  burden
is on the applicant to establish why it would be in the interest of  justice
to excuse a late application.  The applicant was  separated  in  1996  after
his second passover after being considered by CSBs using the  same  language
in question.  He filed his request  for  records  correction  more  than  11
years after the 1996  board,  claiming  that  he  did  not  know  about  the
unconstitutionality of the EO language used at the boards  which  considered
him until 2 August 2007 when a similar-situated friend and former Air  Force
member allegedly told him about it.  The applicant alleges that he  did  not
learn about the Berkley case, and therefore about the  injustice  associated
with the secretarial language used in promotion boards, until  August  2007.
In JAA's opinion, the applicant has not met his burden of showing  that  his
claim should not be barred for lack of  timeliness,  and  the  determination
referenced  in  the  immediately-preceding  sentence  is   only   marginally
defensible. The applicant's attorney’s “brief” pointedly lectures the  Board
that the Kreis case obligates it to treat similar cases in a similar  manner
unless it can provide a  legitimate  reason  for  failing  to  do  so.   One
extraordinarily compelling legitimate reason why two applicants who met  the
same problematic promotion board might be treated differently  is  that  one
filed a timely claim and the other one did not.

The complete JAA evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant  on  25
January 2008 for review and comment within 30 days.  As of this  date,  this
office has received no response (Exhibit D).

_________________________________________________________________

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 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 1995A and  1996A  Major  Central
Selection Boards.
________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-03185
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  pertaining  to  Docket   Number   BC-2007-03040   was
considered:

    Exhibit A.  DD Form 149, dated 10 September 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPPPO, dated 25 October 2007.
    Exhibit C.  Letter, AF/JAA, dated 22 January 2008.
    Exhibit D.  Letter, SAF/MRBR, dated 25 January 2008.




                                   THOMAS S. MARKIEWICZ
                                   Chair




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Office of the Assistant Secretary

AFBCMR BC-2007-03040




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
major by Special Selection Board (SSB) for the Calendar Year 1995A and
1996A Major Central Selection Boards.








JOE G. LINEBERGER

Director

Air Force Review Boards Agency