RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-1999-00634

		COUNSEL:  None

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.	His retirement date be established as 1 August 1999 to reflect 30 years of commissioned service.

2.	All of his pay be adjusted to reflect this date.

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APPLICANT CONTENDS THAT:

The instructions given to the Selective Early Retirement Board (SERB) were patently reverse discrimination.  The Secretary of the Air Force has settled with over 80 officers and he thinks that settlement should be extended to him and other SERBed officers.

In support of the appeal, applicant submits a letter to the Secretary of the Air Force, dated 7 January 1999 and a letter from Office of General Counsel, dated 29 January 1999.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 26 April 1967, applicant was commission a second lieutenant and was progressively promoted to the grade of colonel on 15 May 1991.

He was considered and selected for early retirement by the Fiscal Year 1994B (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 1 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 25 years, 2 months and 26 days of active service.

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AIR FORCE EVALUATION:

The XXXXX, Retirements Branch, Directorate of Personnel Program Management, AFPC/DPPRR, reviewed the application and states that the applicant mandatorily retired under the provisions of the SERB on 1 October 1994.  They defer to AF/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 7, or 29.2 percent, of the 24 chaplain colonels considered for early retirement.  There is no information available as to the number of minorities/women considered and selected by the SERB.  

The only 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 3 March 1999.  Applicant contends that the three-year filing limitation should start from the date of the Baker settlement and “certainly by the letter from SecAF’s General Counsel instructing his BCMR request.”  In reality, the Charge that the applicant asserts is discriminatory has been a matter of public record since his board was held in 1994Likewise, a letter from the Air Force General Counsel’s office informing applicant of his right to apply to the AFBCMR for relief does not excuse the three-year filing limitation.  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 March 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 FY92 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

Applicant review the Air Force evaluations and states that the recommendation from the advisory is that the applicant be denied as untimely.  As recently as 29 January 1999, the Office of the General Counsel, Department of the Air Force, suggested that he sue or forward this matter to the BCMR.  Also, the fact that the Air Force has only recently settled the case with other colonels who have sued relative to the instructions given to the SERB should give life to this request.  The advisory says that he failed to provide any evidence of a material error or injustice....  It is the Air Force’s position 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....”  The evidence of material error or injustice is obvious to anyone who would look at the list of persons who were SERBed.  He does not have a complete list of line officers who were selected, but he does know, within the chaplaincy, who were selected.  He suggests that the instruction saying “you should be particularly sensitive to....” and “The board shall prepare for review by the Secretary and the Chief of Staff....” builds in an automatic bias.  Although one is not supposed to assume that a party is guilty when a court case is settled out-of-court, it does certainly give rise to the belief that the party who settled was concerned about how a jury would have read the evidence.  So here is the evidence: of those chaplains, who were selected by the 1994 SERB, there were no Asians selected, no black, no women, no Pacific-Islanders, no Hispanics, no other categories of minority that you might designate.  In the words of another generation, the only persons who were selected for early retirement were WASPS - white, Anglo-Saxon, Protestants, no Jewish selected, no Catholic chaplains selected.  And of those Protestants who were selected, 60% were southern Baptists.  He has this information only because he personally called every chaplain who were eligible for the SERB and found this data directly from the ministers who were involved - the Air Force Personnel Center would not give him this data - he wonders why!  He has also confirmed this information through the office which endorses chaplains for the XXXXXX XXXXXX Convention.  He honestly does not know what the intent of the Charge was.  He only knows that the result was, unquestionably, a textbook example of reverse discrimination.  He believes that to be unequivocal.  Because that is true, he believes the only moral response would be to compensate those who were wronged - all the chaplains who were selected for early retirement by that board - in the same manner that the Baker case was settled.  That would be his hope, but he understands that he can only apply for that remedy in his own name.

Applicant's complete response, with attachment, 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 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 14 October 1999, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 3 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRR, dated 18 May 99.
   Exhibit D.  Letter, USAF/JAG, dated 10 Jun 99.
   Exhibit E.  Letter, AFBCMR, dated 19 Jul 99.
   Exhibit F.  Applicant’s Response, dated 3 Aug 99,
	w/attachment.