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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