RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-01721

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  1 Dec 05

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APPLICANT REQUESTS THAT:

He be promoted to the grade of major and be allowed to continue his Air Force career.

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THE APPLICANT CONTENDS THAT:

The Calendar Years 1997 and 1998 (CY97 & CY98) Medical Service Corps (MSC) Major Selection Boards were given formal instructions which introduced subjective consideration of race and gender in violation of his equal protection rights.

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

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STATEMENT OF FACTS:

Applicant was considered and not selected for promotion to the grade of major by the CY97D and CY98C Major MSC Central Selection Boards.

Based on his two promotion nonselections, he was honorably discharged on 28 February 1999.  He completed 12 years, 8 months, and 24 days of active service.

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AIR FORCE EVALUATIONS:

AFPC/DPPPO states the applicant met the CY97D Major MSC Central Selection Board as an IPZ eligible.  Although he also met the CY98C Major MSC Central Selection Board, the Memorandum of Instruction (MOI) had been changed to delete the verbiage in question.

The AFPC/DPPPO evaluation is at Exhibit C.

AF/JAA recommends the application be denied as untimely and states, in part, that there is no excuse for applicant’s untimely filing.  The language in the MOI existed since 1993, and was discoverable at the time it occurred in 1997.  Applicant has failed to exercise due diligence as required by law and has instead relied on the actions of others to provide a basis and theory for recovery long after a reasonable period for pursuing a claim had passed.  Further, his request for SSB for the CY98 major board should be denied since the MOI was revised prior to the convening of that board.  The revised MOI used by the CY98 major board 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/JAA 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 24 August 2004 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 not timely filed; however, we believe that the applicant had no reason to file an appeal on the issue under consideration until the court’s findings were published.  Therefore, 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 Board (SSB) for the CY97D Major MSC Central Selection Board.  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.	The MOI was revised to remove the language cited by the court in Berkley and was not in use during the CY98C selection board.  In the absence of evidence that his records were in error or unjust at the time of his consideration by the CY98C selection board, we believe the applicant has failed to sustain his burden that he has suffered either an error or an injustice to warrant SSB consideration for the CY98C Major MSC Central Selection Board.

5.	With respect to his request to be allowed to continue his Air Force career, if he is selected for promotion by the SSB, he should submit this request at that time.

6.	Notwithstanding the above, we find insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant the applicant’s promotion to the grade of major through the correction of records process.  In this regard, the Board observes that officers compete for promotion under the whole person concept whereby many factors are carefully assessed by selection boards.  An officer may be qualified for promotion but, in the judgment of a selection board vested with the discretionary authority to make the selections, may not be the best qualified of those available for the limited number of promotion vacancies.  Therefore, in the absence of evidence that he would have been a selectee, a duly constituted selection board applying the complete promotion criteria is in the most advantageous position to render this vital determination, and that its prerogative to do so should only be usurped under extraordinary circumstances.

7.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 Board (SSB) for the Calendar Year 1997D Major Medical Service Corps (MSC) Central Selection Board.

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The following members of the Board considered Docket Number BC-2004-01721 in Executive Session on 2 May 2005, 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 4 Feb 04, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 28 Jul 04.
    Exhibit D.  Letter, AF/JAA, dated 6 Aug 04.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Aug 04.

AFBCMR BC-2004-01721

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 XXXXXXX, XXXXXXX, be considered for promotion to the grade of major by Special Selection Board (SSB) for the Calendar Year 1997D Major Medical Service Corps (MSC) Central Selection Board.