RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  99-00835
		INDEX CODE: 136.01

		COUNSEL:  

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.	His military records be corrected to provide constructive credit for sufficient active duty pursuant to 10 USC 1405 and 37 USC 205 such that his records will reflect that he retired with 26 years and 1 day of total military service.

2.	His retired pay, effective 1 March 1998, be calculated on the basis of his having retired with 26 years and 1 day of active federal service and recomputation of his retired pay will be based upon the pay scale in effect on 1 September 1995, as adjusted by subsequent retired pay cost of living adjustments.

3.	He receive a payment equal to 14 times the total of his monthly (a) basic pay, (b) basic allowance for quarters (BAQ) to which he was entitled without regard to whether or not he occupied government quarters at the time of his involuntary retirement, (c) basic allowance for subsistence, (d) a $130 payment for variable housing allowance, and (e) flight pay, to the extent he was entitled for the last full month he served on active duty, reduced by an amount equal to $1,000.00 less than the gross amount of retired pay to which he was actually entitled for the first 14 months he was retired, with an appropriate withholding deduction and credit for taxes.

4.	His records be corrected to reflect he was not selected for early retirement by the Fiscal Year 1992 (FY92) Selective Early Retirement Board (SERB), but rather continued on active duty until he was retired for length of service with 30 years active federal commissioned service and he receive an adjustment in pay and allowances, with offsets for retired pay received and civilian earnings.

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APPLICANT CONTENDS THAT:

Applicant’s counsel states that the basis for correction of the applicant’s records is the unconstitutional and illegal conduct of the FY92 Colonel SERB, which was instructed to give preference in its selection process to women and minorities.  Because the Board selected the maximum number of officers it was permitted to select, any preference, advantage, or revoting in favor of one officer necessarily disfavored another officer, because any change in the order of merit list to the advantage of one officer caused at least one other officer to change his position in the order of merit list to his disadvantage.

In support of the appeal, applicant’s counsel submits a 11 page statement.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 25 November 1966, applicant was commission a second lieutenant and was progressively promoted to the grade of colonel on 1 January 1988.

He was considered and selected for early retirement by the FY92 SERB.  The Secretary of the Air Force approved and signed the list of selected officers on 11 February 1992.  Applicant’s mandatory retirement date was established as l September 1992.

On 31 August 1992, applicant was relieved from extended active duty and on 1 September 1992, retired in the grade of colonel with 25 years, 11 months and 17 days 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 mandatorily retired under the provisions of SERB on 1 September 1992.  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, USAF/JAG, also reviewed this application and indicates that the applicant was selected for early retirement by the FY92 Colonel SERB.  The SERB selected 610, or 29.2 percent, of the 2,086 colonels considered for early retirement.  Overall 93 of the 2,086 colonels under consideration by the SERB were members of a minority group and/or women, of which 28, or 30.1 percent, were selected for early retirement.  None of the female officers considered by the board were chosen for early retirement.

Applicant incorporates by reference all evidence submitted by the parties and the judicial decisions relating to the 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, 127F.3d 1081 (Fed. Cir. 1997).  The language in the Charge read 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.

Relying upon paragraph 5 of the board report, applicant also speculates that some of the records were rescored as a result of the affirmative action instruction.  Paragraph 5 read as follows:

With your guidance concerning minorities and women specifically in mind, the board thoroughly reviewed the records of all minority and women officers eligible for selective early retirement.  The retention rates for blacks and women were better than the overall board average.  The retention rate for Hispanic officers was below the board average.  To ensure each minority and woman officer received fair and equitable consideration, the board president carefully reviewed their records and the scoring results.  Where there was any doubt as to the competitiveness of an officer, he caused the record to be rescored to resolve the doubt.  It is the judgment of the board president and the members of the board that those officers recommended for retention are the best qualified officers.

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 FY92 SERB, yet the applicant did not file his application until 24 March 1999.  Applicant explains that he did not become aware of the unconstitutional actions pertaining to the conduct of the FY92 SERB until he read about the Baker settlement in the 14 September 1998 Air Force Times.  In reality, the Charge that the applicant asserts is discriminatory and paragraph 5 of the board report have been a matter of public record since his board was held in 1992.  

Applicant states that the AFBCMR denied his previous application for relief, but invited him to submit newly discovered relevant evidence for consideration by the Board.  The applicant’s “new evidence” is nothing more than his becoming aware of the Baker settlement and its associated evidence after 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 1992.  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 and paragraph 5 concerning the revoting) was as discoverable at the time it occurred in 1992, as it was in the fall of 1998.  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.

Applicant also contends that the Air Force falsified his DD Form 214, Certificate of Release or Discharge from Active Duty, by indicating his retirement was voluntary.  Applicant contends that this precluded his counsel from identifying him and offering him the opportunity to join the Baker litigation.  The contention that this “falsified record” somehow harmed the applicant and thus excuses his untimely filing is without merit.  In order to spare SERB’d members any potential embarrassment from being SERB’d, the Air Force decided to code all SERB retirements as voluntary.  When members were notified the SERB had selected them, they were provided an information packet which informed them how their retirement would be characterized on their DD Form 214.  Some officers objected and requested that their DD Form 214 reflect that they were retired involuntarily.  In every case where an officer requested this, it was done.  Applicant did not ask then to have his DD Form 214 reflect he was retired involuntarily, nor did he request it in his previous AFBCMR application.  Even now, applicant does not request his DD Form 214 be changed.  But even if applicant’s DD Form 214 had been coded to reflect he was SERB’d the Privacy Act would have precluded the Air Force from releasing that information to third parties without applicant’s permission.  Thus, the fact applicant’s DD Form 214 was coded as a voluntary retirement had no effect on applicant not being contacted about possible litigation against the Air Force.

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 cause 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 discharge.  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 consideration, the possibility that some minority officers might have undergone different experiences.”  Baker, 34 Fed.Cl. at 656.

The rescoring referred to in paragraph 5, which applicant contends was improper, was explained in a declaration from Colonel XXXXXX, who served as the XXXXX of XXXXXX, Selection Board Secretariat, during the FY92 SERB.  In his declaration, Colonel Wilson explained that:

With respect to the CY92 SERB, the language in paragraph 5 of the report of board proceedings was identical to that which had been developed for promotion boards.  Unfortunately, although it is technically accurate, it is particularly misleading in the context of a SERB.  When a record is returned for rescoring in promotion boards, the President will typically send the record to a panel which has not reviewed it.  Because the procedures involved in a SERB required both panels to review all of the records which were being recommended for early retirement, there was rarely any reason to rescore a record.  In the CY92 SERB, to the best of my recollection, only one record, that of a former Prisoner of War, was individually selected for rescoring.

In any event, the language in paragraph 5 is accurate in that the board did rescore all records in the bottom 40 percent and, therefore, there was no doubt as to the competitiveness of the officers who were ultimately ranked in the bottom 30 percent.  Nonetheless, its inclusion in the CY92 SERB report of board proceedings is misleading to the extent that it implies the records of women and minority officers were treated more favorable than those of majority males.

Thus, the applicant’s contention that the “Department of Justice withdrew evidence it had filed which suggested that no personnel files were revoted as a result of the affirmative action instruction...leads to the inescapable conclusion that files were revoted, in violation of the constitutional mandate” ignores the fact that the government did not withdraw Colonel XXXXXX declaration.  While the government admitted the language in paragraph 5 is misleading, contrary to applicant’s assertion, the government did not abandon its position on the meaning of paragraph 5.  Colonel XXXXX declaration remained part of the record (to which applicant is prepared to “stipulate to”) and it clearly refutes applicant’s contention that rescoring was done to provide minority officers a second opportunity to be retained.  The fact was that only one record, that of a former POW, was individually rescored.  It is true that the bottom 40 percent were rescored.  Thus, the rescoring was not taken to accommodate minority or female goals, quotas or objectives as applicant contends, but as Colonel XXXXXX indicated, it was done to eliminate any doubt as to the competitiveness of the officers who were ultimately ranked in the bottom 30 percent and thus selected for early retirement.

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 inferences (that the Federal rules of Evidence would preclude) from the Baker settlement.  Thus, the Board would have to reach the conclusion that the Air Force settled the XXXXX case because either 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 finding 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.”

Applicant’s counsel also references four SERB’d officers not included in the Baker litigation who received the same benefits as the Baker litigants as justification for applicant to receive the settlement benefits.  What applicant’s counsel did not mention was that these officers were represented by him, and had begun the process of filing a lawsuit to litigate their SERB selection.  Rather than litigate the same issues again, the Air Force elected to grant these four officers the benefits of the Baker settlement.

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 and the evidence associated with the settlement 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 FY92 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, not because of the Court settlement, but rather because 87 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.

Applicant'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.  Accordingly, we conclude that it would not be in the interest of justice to excuse the untimely filing of the application.

3.	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 issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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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 24 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRRP, dated 18 May 99.
   Exhibit D.  Letter, USAF/JAG, dated 30 Jun 99.
   Exhibit E.  Letter, AFBCMR, dated 9 Aug 99.
   Exhibit F.  Counsel's response, dated 23 Aug 99.