RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 02-02733

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be considered for promotion to the grade of lieutenant colonel by Special Selection Boards (SSBs) for the Calendar Year 1993A (CY93A) Lieutenant Colonel Judge Advocate General (JAG) Central Selection Board, and any subsequent boards where instructions were given to give female and minority officers special consideration, and that the SSBs be conducted without the discriminatory instructions.

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THE APPLICANT CONTENDS THAT:

He should receive SSB consideration for promotion based on a decision by the U.S. Court of Appeals for the Federal Circuit that the special instructions to the selection boards required differential treatment of officers, based on their race and gender.

In support of the appeal, the applicant submits a copy of a U.S. Court of Appeals for the Federal Circuit decision.

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

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STATEMENT OF FACTS:

The applicant was considered and not selected for promotion by the CY91B (in-the-promotion zone (IPZ)), CY92B, CY93A, and CY94A Lieutenant Colonel JAG Central Selection Boards.

On 1 August 1995, he retired in the grade of major.

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AIR FORCE EVALUATIONS:

The General Law Division, AF/JAG, recommends the application be denied based on the applicant’s failure to file timely.  AF/JAG states, in part, that there is no excuse for the applicant’s late filing and complaint of the Memorandum of Instruction (MOI) language that has existed since 1993.

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.  In order to determine whether there has been an equal protection violation under the court’s 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.

The AF/JAG evaluation is at Exhibit C.

The Officer Promotion Branch, AFPC/DPPPO, states that the applicant met the CY92B, CY93A, and CY94A Lieutenant Colonel JAG Central Selection Board.

The AFPC/DPPPO evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states that AF/JAG opines that he should have known in 1994 that his board had been given unconstitutional directions to consider minority and gender factors when making promotion selections.  However, AF/JAG offers no suggestion as to how he was to know these instructions were given to the board.  The instructions were not made public nor were they provided to him when he made a Freedom of Information (FOI) request seeking information as to what was presented to the CY93A board.

The applicant’s complete response is at Exhibit F.

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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, we believe that 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 Special Selection Boards (SSBs).  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.  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.

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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 Boards (SSBs) for the Calendar Years 1991B, 1992B, 1993A and 1994A Lieutenant Colonel Judge Advocate General (JAG) Central Selection Boards.

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The following members of the Board considered Docket Number 02-02733 in Executive Session on 19 February 2003, under the provisions of AFI 36-2603:

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

    Exhibit A.  DD Form 149, dated 22 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AF/JAG, dated 27 Nov 02.
    Exhibit D.  Letter, AFPC/DPPPO, dated 16 Dec 02.
    Exhibit E.  Letter, SAF/MRBR, dated 20 Dec 02.
    Exhibit F.  Letter, Applicant, dated 39 Jan 03.

AFBCMR 02-02733

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 APPICANT, be considered for promotion to the grade of lieutenant colonel by Special Selection Boards (SSBs) for the Calendar Years 1991B, 1992B, 1993A and 1994A Lieutenant Colonel Judge Advocate General (JAG) Central Selection Boards.