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AF | BCMR | CY2008 | BC-2007-03050
Original file (BC-2007-03050.DOC) Auto-classification: Approved


                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03050
            INDEX CODE:  131.01

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be considered for promotion to the  grade  of  major  by  a
Special Selection Board (SSB) for Calendar  Years  1995A  (CY95A)  and
1996A (CY96A) Major Line Central Selection Boards (CSBs).

_________________________________________________________________

APPLICANT CONTENDS THAT:


The CY95A and CY96A board members were instructed to consider race and
gender when selecting officers for promotion to major.  As  a  result,
he was the victim of  reverse  discrimination.   Federal  courts  have
considered this matter and have concluded the military could  not  use
those discriminatory and unconstitutional procedures.

In support of his appeal,  the  applicant  provides  a  counsel’s  brief,  a
Memorandum of Decision, and several court cases.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force,
on 16 Mar 84 and was voluntarily ordered to extended active duty on  6
May 84.

He was honorably discharged from all appointments on 30 Nov  96  under
the provisions of AFI 36-3207 (Nonselection, Permanent Promotion).  He
was credited with 12 years, 6 months, and 25 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO states the applicant met and was nonselected for  promotion
to major by CY97C (in-the-promotion zone (IPZ)) and CY98B  Major  Line
CSB, which convened on 16 Jun 97 and 6 Apr 98, respectively.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit C.

HQ USAF/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.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel indicates he concedes the Air Force is bound  by  the  court’s
conclusion in the Berkley case, and he also confirms the Memorandum of
Instruction  (MOI)  for  both  of  the  applicant’s  promotion  boards
contained  language  found  unconstitutional  in  the  Berkley   case.
However, he does not agree the applicant’s appeal is untimely  because
the Board has found it in the interest of justice to waive the statute
of limitations in similar cases.  Therefore, the Board should do so in
this case.

Counsel’ complete response is at Exhibit F.

By letter, dated 31 Jan 08, the applicant’s counsel  withdrew  as  his
counsel, indicating he had been offered federal employment and federal
law prohibits him from representing any person with  a  claim  against
the United States (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,  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  SSBs.   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.

_________________________________________________________________

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 Boards (SSBs) for the Calendar Years  1995A
and 1996A Major Line Central Selection Boards.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2007-03050 in Executive Session on 29 May 08, 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 6 Sep 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSOO, dated 17 Oct 07.
     Exhibit D.  Letter, HQ USAF/JAA, dated 29 Oct 07.
     Exhibit E.  Letter, SAF/MRBR, dated 2 Nov 07.
     Exhibit F.  Letter, counsel, dated 20 Nov 07.
     Exhibit G.  Letter, counsel, dated 31 Jan 08.




                                   THOMAS S. MARKIEWICZ
                                   Chair




AFBCMR BC-2007-03050




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 , be considered for promotion to the grade of major
by Special Selection Boards (SSBs) for the Calendar Years 1995A and
1996A Major Line Central Selection Boards.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency



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