RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-00287

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be promoted to the grade of lieutenant colonel.

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THE APPLICANT CONTENDS THAT:

The mandate for fair and equitable “consideration for minorities and women” given to the 1998 Lieutenant Colonel Selection Board clearly required that female and minority officers were to be evaluated under a different standard than white male officers.  This action showed bias toward race and sex.

In support of the appeal, applicant submits his personal statement, a copy of the U.S. Court of Appeals for the Federal Circuit decision in Berkley, and the Secretary of the Air Force’s Memorandum of Instructions (MOIs) for the 1997 and 1998 selection boards.

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

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STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major.

He was considered and not selected for promotion to the grade of lieutenant colonel by the CY98B Lieutenant Colonel Line Central Selection Board (in-the-promotion zone (IPZ)).

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AIR FORCE EVALUATIONS:

AF/JAG recommends the application be denied and states, in part, that in 1998, the offending MOI section was changed.  The revised MOI was used by the CY98B selection board and did not create either a constitutionally objectionable classification or benefits or burdens for competitors in the board process.  There is no legal basis to challenge the revised MOI section and the applicant has failed to demonstrate any error or injustice.

The AF/JAG evaluation is at Exhibit C.

AFPC/DPPPO states that the applicant met the CY98B Lieutenant Colonel Line Central Selection Board as an IPZ eligible.

The AFPC/DPPPO evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 28 February 2003 for review and response within 30 days.  However, as of this date, this office has received no response.

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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that relief should be granted.  The applicant contends that the MOI used by the CY98B selection board provided particular attention to women and minority eligibles; thus, violating the equal protection guarantee of the Fifth Amendment.  However, in 1998, the MOI was revised to remove the language cited by the court in Berkley and was not in use during the CY98B selection board.  In the absence of evidence that his records were in error or unjust at the time of his consideration by the CY98B selection board, we believe the applicant has failed to sustain his burden that he has suffered either an error or an injustice.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2003-00287 in Executive Session on XXXXXX, under the provisions of AFI 36-2603:

				Vice Chair
				Member
				Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Jan 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AF/JAG, dated 31 Jan 03.
    Exhibit D.  Letter, AFPC/DPPPO, dated 31 Jan 03.
    Exhibit E.  Letter, SAF/MRBR, dated 28 Feb 03.

                                   
                                   Vice Chair