RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-1999-00560
		INDEX CODE: 136.01

		COUNSEL:  

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.	His retirement date be adjusted from 1 October 1994 to 30 June 1997.

2.	He be paid the difference between his retirement pay and what would have been his active duty pay and allowances from 1 October 1994 to 30 June 1997.

3.	His retired pay be adjusted to reflect a 30 June 1997 retirement to include any differences between 1 October 1994 to present, as was granted the 83 colonels in the Air Force Times article.

4.	His future retired pay be continued as though his retirement date was 30 June 1997.

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APPLICANT CONTENDS THAT:

His performance potential for further service was not fairly considered when compared to all of his peers.  As a result he was selected for early retirement when others, who should have been selected ahead of him, were permitted to continue based on their sex or minority status.  The instructions to the Fiscal Year 1994B (FY94B) Selective Early Retirement Board (SERB) discriminated against him on the basis of race and gender.

In support of the appeal, applicant submits a copy of a 14 September 1998 article from the Air Force Times, copy of the Standard Memorandum of Instructions for Selective Early Retirement Boards, copy of a 23 November 1998 Air Force Times article, copy of his DD Form 214, Certificate of Release or Discharge from Active, and Major General F---’s letter, dated 29 March 1994, with attachment.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 30 January 1967, applicant was commission a second lieutenant and was progressively promoted to the grade of colonel on 1 September 1988.

He was considered and selected for early retirement by the FY94B SERB.  The Secretary of the Air Force approved and signed the list of selected officers on 15 March 1994.  Applicant’s mandatory retirement date was established as l October 1994.

On 30 September 1994, applicant was relieved from extended active duty and on 1 October 1994, retired in the grade of colonel with 27 years, 7 months, and 3 days of active service.

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AIR FORCE EVALUATION:

The Retirements Policies & Programs, Directorate of Personnel Program Management, AFPC/DPPRRP, reviewed the application and states that the applicant was mandatorily retired under the provisions of the SERB on 1 October 1994.  They defer to AFPC/JA for a legal advisory pertaining to the request for corrective action similar to that received by the plaintiffs in the Baker settlement.  There are no provisions of law that would allow extension of a retirement date established by selection for early retirement under SERB laws.  Therefore, they recommend denial of the requested relief.

A complete copy of the evaluation is attached at Exhibit C.

The XXXXX, General Law Division, Office of The Judge Advocate General, AF/JAG, also reviewed this application and indicates that the applicant was selected for early retirement by the FY94B Colonel SERB.  The SERB selected 111, or 29.9 percent, of the 371 colonels considered for early retirement.  There is no information available as to the number of minorities/women considered and selected by the SERB.  

The principle evidence applicant submits to support his request is a 14 September 1998 Air Force Times article reporting an out-of-court settlement in Baker v. United States, 34 Fed.Cl. 645, (1995), which involved 83 colonels who were also selected by the FY92 SERB.  The basis of the Baker complaint was that the Secretarial Memorandum of Instruction (MOI) Charge to the SERB, on its face and as applied by the members of the SERB, violated their constitutional right to equal protection of law because women and minority colonels were given a preference in the selection process over male, nonminority colonels, with the result that the plaintiffs were forced to retire in the place of those to whom preference was given on account of race and/or gender.  Baker v. United States, 127 F.3d 1081, 1082 (Fed. Cir. 
1997). The language in the Charge reads as follows:

Your evaluation of minority and women officers must clearly afford them fair and equitable consideration.  Equal opportunity for all officers is an essential element of our selection system.  In your evaluation of the records of minority officers and women officers, you should be particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed these officers at a disadvantage from a total career perspective.  The board shall prepare for review by the Secretary and the Chief of Staff, a report of minority and female officer selections as compared to the selection rates for all officers considered by the board.

This Charge was also given to the FY94B SERB.

In regard to the merits of the applicant’s requests, AF/JAG states that first, they recommend the application be denied as untimely.  By law and regulation, an application must be filed within three years after an error or injustice is discovered, or with due diligence, should have been discovered.  An application filed late is untimely and should be denied by the Board on that basis unless it should be excused in the interest of justice.  Although the Board can 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 the late application.  In this case, the error alleged by the applicant occurred during the FY94B SERB, yet the applicant did not file his application until 28 February 1999.  Applicant’s only explanation is that while he believed that the SERB did not fairly evaluate his record as compared with those of his peers, he had no evidence to support a request for relief until he read an Air Force Times article.  Applicant claims that all board proceedings had been kept secret, but that in agreeing to the settlement, the Air Force gave credence to the contention that all boards presented with exactly the same “prejudicial” instructions acted in a manner similarly prejudicial to members of certain gender and race.  In reality, the Charge that the applicant asserts is unfair has been a matter of public record since his board was held in 1994.  The applicant’s “new evidence” is nothing more than his claim to having read an article in the Air Force Times in which others have alleged the Charge was unlawfully discriminatory.  This, in and of itself, is neither evidence of discrimination nor an excuse for not complaining of the language that has existed since 1994.  In order to excuse a delay, the applicant should have to show that the error was not discoverable, or that even after due diligence, it could not have been discovered.  Clearly, the issue about which the applicant complains (the language of the Charge) was as discoverable at the time it occurred in 1994, as it was in February 1999.  What is apparent is that applicant failed to exercise the due diligence the law requires and relied instead on the actions of others (most notably the Air Force Times) to provide a basis and theory for recovery long after a reasonable period for pursuing a claim had passed.

In addition to being untimely, applicant has failed to provide any evidence of a material error or injustice upon which relief can be granted.  As noted in the Air Force Times article, the Air Force defended the Baker case because it believed the Charge was proper.  Indeed, the Air Force’s position was that the Charge did not establish a goal or quota or otherwise provide an incentive to treat officers unequally based upon their race or gender, nor did the Charge direct the board to make selections upon the basis of race or gender.  As the trial court wrote in Baker:

“The Charge, however, did not mandate that members of the SERB consider race [or gender] in discharge decisions.  The Charge did not establish any quota or goal for the percentage of minorities to be discharged.  The Charge did not include race [or gender] in its list of factors that SERB members should consider in making separation decisions.  The Charge merely cautioned members of the SERB to be aware that some minority officers may have experienced different career opportunities or may have been affected, in some way, by discrimination.  In a process which the Charge itself describes as subjective, the language at issue merely asked members of the SERB to keep in mind, as one of a host of subjective considerations, the possibility that some minority officers might have undergone different experiences.”  Baker, 34 Fed.Cl. at 656.

Lawsuits are settled for a myriad of reasons.  The settlement of a case should not be viewed as an admission of guilt or liability, but instead viewed as a reflection of the parties’ assessment of the relative risks of litigation balanced against the potential costs of pursuing litigation.  Public policy strongly favors the nonjudicial settlement of disputes, for settlement reduces costs for all parties, conserves judicial and private resources and promotes good will.  In furtherance of this public policy, Federal Rule of Evidence 408 provides that evidence of a settlement is not admissible “to prove liability for or invalidity of the claim or its amount.”  To do otherwise would impede, rather than encourage, efforts to seek out-of-court settlements.

For this applicant to prevail, the Board must, of necessity, draw an adverse inference (that the Federal Rules of Evidence would preclude) from the Baker settlement because this is the only evidence the applicant has provided.  Thus, the Board would have to reach the conclusion that the Air Force settled the Baker case because the Charge was flawed and consequently, applicant’s selection for early retirement constituted an error or injustice.  They point out the enormous leap in logic, unsupported by any evidence, that this involves.  Consequently, in their opinion, it would be inappropriate for the Board to draw any inferences from the Baker settlement.  It is important to note that the Court of Appeals in the Baker case did not make any findings on the merits of the plaintiffs’ case.  It only decided that there was insufficient evidence to support the government’s Motion for Summary Judgment and thus remanded the case for trial.  As reported in the Air Force Times, in settling out of court, the Air Force did not concede that there was anything wrong with its selection procedures.  Indeed, as the then Air Force General Counsel explained, the settlement “was the appropriate way to resolve this matter.  The Air Force leadership continues to have great confidence in our [board] processes.”

In essence, applicant is asking the Board to include him in the Baker settlement and grant him the same or similar relief as reported in the Air Force Times.  Even though the applicant was not a party to the Baker litigation, he certainly has had (and continues to have) sufficient opportunity by himself to pursue a claim.  For the public policy reasons discussed above, they believe the Board should not permit an out-of-court settlement agreement to be used as evidence the applicant was not fairly considered by the FY94B SERB.

In summary, AF/JAG states that they recommend that applicant’s request be denied.  First, applicant’s request is untimely and should be denied because he has provided nothing to establish that it would be in the best interest of justice to excuse the untimely filing.  Second, applicant’s reliance on an out-of-court settlement agreement reported in the Air Force Times does not constitute evidence of a material error or injustice upon which relief can be granted.  There are strong public policy reasons, as recognized in the Federal Rules of Evidence, why the Board should not attach any adverse consequences to the Baker settlement.  In their opinion, the Board should recognize the policy argument.  The fact is, applicant’s selection by the FY94B SERB did not constitute an error or injustice upon which relief should be granted.  Consequently, they recommend that the Board deny applicant’s request for relief as being untimely filed or, in the alternative, because he has failed to demonstrate the existence of a material error or injustice.

A complete copy of their evaluation is attached at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The applicant’s counsel reviewed the Air Force evaluations and has submitted detailed comments.  In summary he states that the applicant should receive the benefits that 83 other officers received through the settlement, not because of the Court settlement, but rather because 83 officers received it.  Whether they received it from the Correction Board or from a settlement or from the good graces of the Secretary of the Air Force or just because they were lucky, is not the issue.  The point is they did receive it and the applicant, who is identically situated to them, did not.  There are strong public policy reasons to treat all people similarly situated equally.  That concept is captured in the Fifth Amendment to the United States Constitution.  Similarly there are strong public policy reasons to discourage litigation.  The advisory opinion in fact has an exact opposite effect on both of these policies, inasmuch as it encourages litigation and encourages disparate treatment of officers identically situated.  That constitutes an injustice and the BCMR is empowered to correct injustices.  The concept of correcting an injustice is a concept of equity and fairness.  The litigation in the Baker case is referenced because it demonstrates a fact pattern of what happened.  What happened was the Board that retired the applicant applied an unconstitutional instruction in an unconstitutional way.  The Baker opinion, when read in the context of Adarand and numerous other Circuit Court opinions, cannot be read in any other fashion.  The applicant’s application is timely filed and the relief that he seeks is entirely fair and appropriate.

Counsel's complete response is attached at Exhibit F.

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FINDINGS AND CONCLUSIONS OF THE BOARD

1.	The application was not filed within three years after the alleged error or injustice was discovered, or reasonably could have been discovered, as required by Section 1552, Title 10, United States Code (10 USC 1552), and Air Force Instruction 36-2603.  Although the applicant asserts a date of discovery which would, if correct, make the application timely, the essential facts which gave rise to the application were known to the applicant long before the asserted date of discovery.  Knowledge of those facts constituted the date of discovery and the beginning of the three-year period for filing.  Thus the application is untimely.

2.	Paragraph b of 10 USC 1552 permits us, in our discretion, to excuse untimely filing in the interest of justice.  We have carefully reviewed applicant's submission and the entire record, and we do not find a sufficient basis to excuse the untimely filing of this application.  The applicant has not shown a plausible reason for delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits at this time.  We are not privy to the reasons for the out-of-court settlement concerning the 83 colonels that were considered by the Fiscal Year 1992 Selective Early Retirement Board (SERB).  However, we note that the applicant was considered by the Fiscal Year 1994B (FY94B) SERB 
and there is no information available as to the the number of minorities/women considered and selected by the FY94B SERB.  Accordingly, we conclude that it would not be in the interest of justice to excuse the untimely filing of the application.

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DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

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The following members of the Board considered this application in Executive Session on 17 September 1999, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Feb 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRRP, dated 16 May 99.
   Exhibit D.  Letter, USAF/JAG, dated 11 Jun 99.
   Exhibit E.  Letter, AFBCMR, dated 12 Jul 99.
   Exhibit F.  Counsel's response, dated 18 Aug 99.