RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-01438

	 	COUNSEL:  XXXXX

	 	HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 1997C (CY97C) Lieutenant Colonel Line Central Selection Board.

_________________________________________________________________

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.

_________________________________________________________________

STATEMENT OF FACTS:

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

He was considered and not selected for promotion by the CY97C (in-the-promotion zone (IPZ)) Lieutenant Colonel Line Central Selection Board.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The General Law Division, AF/JAG, states, in part, that 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.  If the Board determines that there has been an error or injustice, the Board may grant applicant’s request.

The AF/JAG evaluation is at Exhibit C.

The Officer Promotion Branch, AFPC/DPPPO, states that the applicant met the CY97C Lieutenant Colonel Line Central Selection Board.

The AFPC/DPPPO evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel states that the EEO language to the CY97C Board was unconstitutional and the applicant is entitled to an SSB because the selection board was convened contrary to law.

Counsel’s complete response is at Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

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 Board (SSB).  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.

_________________________________________________________________

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 Board (SSB) for the Calendar Year 1997C Lieutenant Colonel Line Central Selection Board.

_________________________________________________________________

The following members of the Board considered Docket Number BC-2003-01438 in Executive Session on 11 July 2003, under the provisions of AFI 36-2603:

				Vice Chair
				Member
				Member

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

    Exhibit A.  DD Form 149, dated 23 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AF/JAG, dated 30 Apr 03.
    Exhibit D.  Letter, AFPC/DPPPO, dated 23 Jun 03.
    Exhibit E.  Letter, SAF/MRBR, dated 27 Jun 03.
    Exhibit F.  Letter, Counsel, dated 1 Jul 03.

                                   
                                   Vice Chair

AFBCMR BC-2003-01438

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 APPLICANT, be considered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 1997C Lieutenant Colonel Line Central Selection Board.

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency