RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03336
            INDEX CODE:  131.00
      XXXXXXXXXXXXXXXXXXXXXX COUNSEL:  XXXXXXXXXXXXXXXXX

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive reconsideration for promotion to the grade of lieutenant  colonel
(Lt Col) by a special selection board (SSB)  for  the  Calendar  Year  1997C
(CY97C) Lt Col Central Selection Board (CSB).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The procedures used by the CY97C promotion board were unconstitutional,  and
these  unconstitutional  procedures  prohibited  the   board   from   fairly
considering him for promotion to Lt Col.

In support of his request, applicant provides his counsel's  statement;  and
copies of the CY97C Memorandum of Instructions (MOI), a declaration that  he
did not discover the  unconstitutionality  of  the  Equal  Opportunity  (EO)
language used in the CY97C promotion board MOI until on or about  3  October
2007, and his DD Form 214, Certificate of Release or Discharge  from  Active
Duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant served in the Regular Air Force  from  7  August  1981  to  31
August 2001.  He was progressively promoted to the grade of major  effective
1 February 1994.  On 21 July 1997, he was considered by  the  CY97C  Lt  Col
Line CSB for promotion to the grade of Lt Col; however,  was  not  selected.
He retired effective 1 September 2001 in the grade of major.  He  served  20
years and 24 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial of the applicant’s appeal based on his  request
being untimely.  DPSOO states the MOI  provided  to  CSBs  convened  between
January 1990 and June 1998 did contain the  same  EO  clause  and  may  have
harmed officers meeting these boards (Berkley, et  al.,  v.  United  States,
United States Court of Appeals for  the  Circuit,  Docket  Number  01-5057).
Therefore, the applicant’s request does fall under the Berkley decision.

The DPSOO evaluation is at Exhibit B.

AF/JAA agrees with the DPSOO recommendation to deny the  applicant’s  appeal
based on  his  request  being  untimely.   It  is  JAA’s  opinion  that  the
applicant has not met his burden of showing that his  claim  should  not  be
barred for lack of timeliness.  JAA  states  it  is  extraordinarily  likely
that the applicant would or should have had actual notice of the  MOI  issue
while he was on active duty, and if he did not,  due  diligence  would  have
made  him  aware  of  the  matter.   They  are  troubled  by  the  curiously
restrictive language in the application, particularly in light of  the  high
likelihood that the applicant was put on sufficient notice while he  was  on
active duty as to characterize his lack of timely follow-up  as  a  lack  of
due diligence.  It is not the Air Force’s or the AFBCMR’s responsibility  or
burden to demonstrate the applicant did not know and could  not  have  known
by being duly diligent.

The JAA evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT 'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded that the applicant  maintains  his  appeal
was timely submitted because it was  filed  within  three  years  after  the
discovery of the error or injustice.  Alternatively, if the  application  is
determined to  be  untimely,  applicant  requests  the  Board  exercise  its
discretion to excuse the untimely filing in the interest of justice.   Other
officers are receiving SSBs for unconstitutional boards that are as  old  as
or older than the applicant’s board, e.g., a recently decided  case,  docket
number BC-2007-00308, involves a CY96C board.   The  Board  has  waived  its
three-year  statue  of  limitation  despite  the  recommendation  in   other
advisory opinions not to do so.  To fail selection for promotion because  of
racial or gender discrimination is undeniably an error or injustice.  To  be
denied a remedy, based upon a statue of  limitation,  when  that  limitation
has been routinely waived in similar cases compounds both the error and  the
injustice and implicates the constitutional guarantee  of  equal  protection
under the law.  If the Board fails to waive its statue of limitation in  the
applicant’s case, it must explain why it is not in the interest  of  justice
to do so.  It must also explain why the applicant’s case  is  being  treated
differently than other Berkley cases where  it  has  waived  the  statue  of
limitation.

The Counsel’s rebuttal is at Exhibit E.

_________________________________________________________________

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 SSB for the CY97C  Lt  Col  CSB.   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.
 We note the opinions of the Air Force  offices  of  primary  responsibility
recommending to deny  the  case  based  on  the  applicant’s  request  being
untimely; however, 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 issues 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 Lt Col by  SSB  for
the CY97C Lt Col CSB.

________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 11 June 2008, under the provisions of AFI 36-2603:

            Mr. Thomas S. Markiewicz, Chair
            Ms. Kathleen F. Graham, Member
            Mr. James W. Russell, III, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence for AFBCMR Docket Number BC-2007-03336 was considered:

    Exhibit A.  DD Form 149, dated 10 Oct 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPSOO, dated 17 Jan 08.
    Exhibit C.  Letter, USAF/JAA, dated 21 Feb 08.
    Exhibit D.  Letter, SAF/MRBR, dated 29 Feb 08.
    Exhibit E.  Counsel’s Rebuttal, dated 31 Mar 08.




                                   THOMAS S. MARKIEWICZ
                                   Chair



AFBCMR BC-2007-03336




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 XXXXXXXXXXXXXXXXXXXXXX, be considered for promotion to the
grade of lieutenant colonel by Special Selection Board (SSB) for the
Calendar Year 1997C Lieutenant Colonel Central Selection Board.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency