RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02409
		INDEX CODE:  131.01

		COUNSEL:  YES

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His record be considered for promotion to the grade of major by a Special Selection Board (SSB) for Calendar Years 1997C (CY97C) and 1998B (CY98B) Major Line Central Selection Boards (CSBs).

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APPLICANT CONTENDS THAT:

The CY97C and CY98B board members were instructed to consider race and gender when selecting officers for promotion to major.  As a result, he was the victim of reverse discrimination.  Federal courts have considered this matter and have concluded the military could not use those discriminatory and unconstitutional procedures.

In support of his appeal, the applicant provides a counsel’s brief, a Memorandum of Decision, and several court cases.

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

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force, on 10 Sep 86 and was voluntarily ordered to extended active duty.

He was relieved from active duty on 30 Jun 00 and retired, effective 1 Jul 00, in the grade of captain.  He was credited with 20 years, 6 months, and 13 days of active service.

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AIR FORCE EVALUATION:

AFPC/DPPPO states the applicant met and was nonselected for promotion to major by CY97C (in-the-promotion zone (IPZ)) and CY98B (above-the-promotion zone (APZ)) Major Line CSB, which convened on 16 Jun 97 and 6 Apr 98, respectively.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit C.

HQ USAF/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.

A complete copy of the HQ USAF/JAA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 19 Oct 07 for review and response within 30 days.  As of this date, no response has been received by this office (Exhibit E).

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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, 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 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 major by Special Selection Boards (SSBs) for the Calendar Years 1997C and 1998B Major Line Central Selection Boards.

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The following members of the Board considered AFBCMR Docket Number BC-2007-02409 in Executive Session on 29 May 08, 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 24 Jul 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPO, dated 27 Aug 07.
     Exhibit D.  Letter, HQ USAF/JAA, dated 15 Oct 07.
     Exhibit E.  Letter, SAF/MRBR, dated 19 Oct 07.