RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-03400

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be reconsidered for promotion to the grade of major, Professional Military Education (PME), and reinstatement to active duty, by Special Selection Boards (SSBs) for the Calendar Years 1994 (CY94) through 1998B Major Line Central Selection Boards.

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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 CY94 (in-the-promotion zone (IPZ)), CY95A, CY96A, CY97C, and CY98B Major Line Central Selection Boards.

On 1 January 2004, he retired in the grade of captain.

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AIR FORCE EVALUATIONS:

The Officer Promotion Branch, AFPC/DPPPO, states that the applicant met the CY94 (IPZ), CY95A, CY96A, CY97C, and CY98B Major Line Central Selection Boards.

The AFPC/DPPPO evaluation is at Exhibit C.

The Administrative Law Division, AF/JAA, states, in part, that if the Board determines there has been an error or injustice, it may grant the applicant’s request.  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/JAA evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

A complete copy of the Air Force evaluation was forwarded to the applicant on 26 November 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.  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.

4.  Should the applicant be selected for promotion by an SSB, he will automatically be reconsidered for Professional Military Education (PME).  He will also be offered the opportunity for reinstatement to active duty.

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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 major by Special Selection Boards (SSBs) for the Calendar Years 1994 through 1998B Major Line Central Selection Boards.

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The following members of the Board considered Docket Number BC-2003-03400 in Executive Session on 5 January 2004, 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 7 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 31 Oct 03.
    Exhibit D.  Letter, AF/JAA, dated 3 Nov 03.
    Exhibit E.  Letter, SAF/MRBR, dated 26 Nov 03.

                                   

AFBCMR BC-2003-03400

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 major by Special Selection Boards (SSBs) for the Calendar Years 1994 through 1998B Major Line Central Selection Boards.