RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-04014

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be granted supplemental consideration for the calendar year  1993  (CY93)
Selective Early Retirement Board (SERB).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The  direction  to  consider  gender  and  racial  classifications  by   the
Secretary of the Air Force in a Memorandum of Instruction (MOI) to the  CY93
SERB  violated  his  Fifth  Amendment  rights  under   the   United   States
Constitution and this procedure prevented the SERB from  fairly  considering
his retention based  upon  merit.   The  magnitude  of  this  constitutional
violation warrants supplemental consideration.

In support of his appeal the applicant submits a statement, a  copy  of  his
DD Form 214, Certificate of Release or Discharge  from  Active  Duty  and  a
copy of the court case, Berkley (et al) vs. United States.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force in 1971.  On  20  January
1993, while serving in the grade  of  lieutenant  colonel,  his  record  was
considered by a SERB.  The applicant was  not  selected  for  retention  and
subsequently retired effective 1 October 1993, in the  grade  of  lieutenant
colonel with 22 years, 3 months, and 27 days of active service.

The applicant’s case falls within the ambit of the case  Berkley  v.  United
States.  This case specifically scrutinized the language used in  Air  Force
selection boards.  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.  Nevertheless, in a split decision,  the
court in Berkley concluded  that  because  “the  MOI  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.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial of the applicant’s request as untimely.

The error claimed by the applicant occurred during SERB boards conducted  in
1993.  The law is clear that ignorance of the factual or legal  basis  of  a
claim is no bar to application of a limitations period.

The complete AFPC/DPSOO evaluation is at Exhibit C.

HQ USAF/JAA agrees with AFPC/DPSOO’s recommendation to deny the  applicant’s
appeal as untimely.

JAA opines that  whether  or  not  the  applicant’s  declaration  about  his
supposedly learning about the MOI upon stumbling on the news  is  worthy  of
belief is not the issue.  JAA asserts that the critical issues are (1)  that
due diligence on the applicant’s part  would  have  revealed  long  ago  the
existence of problematic selection board MOI  Language;  (2)  the  applicant
has not made a showing that the interests of  justice  warrant  relief  from
the limitations bar on filing claims for relief;  and  (3)  while  it  is  a
legal  truism  that  similar  cases  should  be  treated   similarly,   this
applicant’s case is not similar to others in which  the  limitations  period
was waived because of the extraordinary length of time that passed here.

The applicant did not file his application for relief until seventeen  years
after his nonselection-related retirement.  The information  he  needed  was
readily and publically available years ago, had he made  the  inquiries  any
involuntarily-retired officer can  reasonably  be  expected  to  make.   His
declaration’s recitation  about  how  he  learned  of  the  problematic  MOI
language just a few months before  filing  this  appeal  is  not  worthy  of
belief.

Certainly, it is within the AFBCMR’s  discretion  to  start  the  three-year
clock running from  the  publicity  associated  with  various  phases  of  a
significant case such as Berkley. The first such event would be  the  filing
of the complaint.  Another,  later  event  would  almost  certainly  be  the
announcement of the tentative settlement  agreement.   The  final  event  in
this case, though likely not as newsworthy as earlier events, would  be  the
final settlement in February 2004.  Even if the AFBCMR  determines  that  in
the interest of justice, the three-year limitation period should  not  start
running until February 2004,  the  time  has  expired  and  the  applicant’s
request is outside that window of opportunity.

The complete JAA advisory is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In  his  response  the  applicant  emphasizes  his  disagreement  with   the
recommendations of both AFPC/DPSOOO and HQ USAF/JAA.  He  states  that  both
opinions acknowledge the fact that his treatment  was  unconstitutional  and
unjust, but recommend denial based on a three-year statute  of  limitations.
While they stress that he should have been aware of  Berkley,  he  believes,
in principle, the Air Force carried the burden of notification.

He reiterates that he served his country for 22 years and  believes  he  was
wrongly  treated.   To  refuse  to  acknowledge  that  because  of  a  legal
technicality would be yet another wrongdoing to him  in  the  face  of  that
dedicated service.

The applicant’s complete response 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 a Special Selection Board (SSB)  for  the  FY1993
Lieutenant Colonel Selective Early Retirement Board (SERB).   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 that the offices of  primary  responsibility  has  recommended  the
applicant’s request be denied as untimely; however,  we  believe,  based  on
the merits, it is in the interest of justice to  waive  timeliness  in  this
case.  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  lieutenant
colonel  by  Special  Selection  Board  (SSB)  for  the  Fiscal  Year   1993
Lieutenant Colonel Selective Early Retirement Board (SERB).

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2009-04014
in Executive Session on 4 October 2010, under  the  provisions  of  AFI  36-
2603:

      Panel Chair
      Member
      Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 27 Oct 09, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, HQ AFPC/DPSOO, dated 21 Jun 10.
  Exhibit D.  Letter, HQ USAF/JAA, dated 25 Jun 10.
  Exhibit E.  Letter, SAF/MRBR, dated 16 Jul 10.
  Exhibit F.  Letter, Applicant, dated 29 Aug 10.




                                   Panel Chair


AFBCMR BC-2009-04014



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 APPLICANT be considered for promotion to the grade of
Lieutenant Colonel by a Special Selection Board (SSB) for the Fiscal Year
1993 Selective Early Retirement Board (SERB)




  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency
-----------------------
"This document contains information which must be protected IAW AFI 33-332
and DoD Regulation 5400.11; Privacy Act of 1974 as amended applies, and it
is For Official Use Only (FOUO)."


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