ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-01427 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be directly promoted to the grade of colonel, with an appropriate Date of Rank (DOR), as if originally selected by the Calendar 1993A (CY93A) Colonel Central Selection Board (CSB), with Senate confirmation. 2. He receive all back pay and allowances as an active duty colonel up until his permanent disability retirement date of 22 Jul 97. 3. His military retirement pay be adjusted based on his retirement grade of colonel starting from his permanent disability retirement date of 22 Jul 97 to the present. 4. His Officer Effectiveness Report (OER) rendered for the period 14 Mar 83 – 16 Feb 84 be amended to read the following: Block II, Job Description, 1. Duty Title as In- residence Intermediate Service School (ISS): AFSC (S1455) or ACSC. Block IV, Assignment Recommendation: 4, Timing: 1984/1985. ________________________________________________________________ STATEMENT OF FACTS: On 24 Sep 99, the applicant was permanently retired in the grade of lieutenant colonel with a compensable disability rating of 30 percent, based on avascular necrosis of the left hip and status post left total hip arthroplasty. He was credited with 24 years, 10 months, and 2 days of active service. On 13 Mar 06, the Board directed the following corrections to the applicant’s record: The AF Forms 77, Supplemental Evaluation Sheet, covering the periods 9 Nov 74 through 30 Apr 75 and 17 Feb 87 through 1 Jan 88, be amended and he be considered by a Special Selection Board (SSB) for all boards for which the AF Forms 77 were a matter of record. On 25 Sep 06, the applicant was considered and selected for Professional Military Education (PME) candidacy by SSB for the CY83 Intermediate Service School (ISS) PME Candidacy board; the applicant was also considered for PME candidacy by the CY87 Senior Service School (SSS) PME candidacy board, but not selected. On Jan 10, a similar appeal was considered and partially approved by the Board and the applicant’s record was corrected to reflect the following: The OER rendered for the period 14 Mar 83 through 16 Feb 84, be amended in Section VI, Rater Comments, by deleting the last two sentences and adding the sentences "He is a major and PME selectee, recently selected to command a flight. Continue to challenge, promote below the zone to lieutenant colonel, and send to Air Command and Staff College now!"; and in Section VIII, Indorser Comments, by deleting the last sentence and adding the sentences "Ready for Air Command and Staff College in residence now. Promote early to lieutenant colonel and groom for command." His record be considered for promotion to the grade of lieutenant colonel by a Special Selection Board (SSB) for the CY85 Below-the-Promotion Zone (BPZ) Lieutenant Colonel CSB, and any subsequent boards for which the OER closing 16 Feb 84 was a matter of record. For an accounting of the facts and circumstances surrounding the applicant’s appeal, and, the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit F. On 15 Jun 10, the Executive Director of the AFBCMR advised the applicant that the Board’s decisional documents were forwarded to his counsel, on 2 Mar 10; however, because no response was received within 30 days and his application was considered by the Board based on the available evidence of record. In addition, he noted, that since the Board had rendered a final decision on his case, unless he presented additional documentary evidence, his case would remain closed (Exhibit G). By letter, dated 26 Jul 10, the applicant provided a response to the advisories; stating neither he or his attorney received copies of the Air Force evaluations and had the Board been provided the additional letters of support, with the recommended change to his OER closing 14 Feb 84, he believes the recommended change to the rater and additional rater comments would have rendered more positive results (Exhibit H). On 14 Sep 11, the Executive Director advised the applicant that the AFBCMR had received several letters and fielded numerous calls and emails, requesting the status of his case, with the submission of new documentation to be added to his application. The Executive Director reminded the applicant of the grounds for reopening a case for reconsideration and that his case remains closed until such evidence is submitted (Exhibit I). By letter, dated 27 Sep 11, the applicant stated that there appeared to be confusion with the handling of his case. He attached previous correspondence from the AFBCMR staff; however, in this letter he requested reconsideration and submitted additional arguments to support his case (Exhibit J). On 15 Nov 11, the applicant notes his disappointment in the handling of his reconsideration request and requested a status of his case (Exhibit K). On 21 Nov 11, the applicant submitted a DD Form 149, which was essentially a request for reconsideration, contending that based on the Board granting partial relief, and the inaccuracy of the contested report, he should be granted a direct promotion to the grade of colonel, with an appropriate DOR for the CY93A Colonel CSB, with all back pay and allowances. Additionally, he believes that his corrected record of performance should be considered by an SSB for selection to attend in-residence PME, specifically, to attend Intermediate Service School (ISS) for the selection boards that met in (84,85,86, and 87). He notes that he was advised by the Air Force Personnel Center (AFPC) that they do not have the archive records or the promotion board data to conduct the SSBs to consider him for ISS in-residence PME as directed by the Board. Therefore, the Air Force cannot provide him full, fitting, equitable and complete relief because of their inability to conduct appropriate SSBs. He believes the evidence he provides in support of his candidacy for ISS and the supporting documentation from his former chain of command warrants consideration for a direct promotion to the grade of colonel. In support of his appeal, the applicant provides copies of his previous directive; retirement orders; extracts from his service medical records; his DVA medical records, and other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit L. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPAPF did not provide a recommendation; however, they noted that because there is no Air Force Instruction (AFI) provision for an SSB for selection to ISS, and due to the non-existence of the corresponding applicable records in question, they have no further remedy available to the applicant with respect to in- residence developmental education. In addition, DPAPF noted that after thoroughly reviewing the actions taken by the AFBCMR, to include scrutiny of the rule sets and logic utilized, concluded that the applicant was provided a fair remedy to his record with the correction of his OER to reflect ISS candidacy and revised statements by the supervisory chain. They concur that it is not appropriate to update his record to reflect attendance at Air Command and Staff College (ACSC), when this indeed did not occur and for the reasons stated in the Board proceedings. There is currently no AFI provision for supplemental consideration for designation to ISS. The complete DPAPF evaluation is at Exhibit M. AFPC/DPSIDEP recommends replacing the additional rater’s comments with the new comments provided. In addition, they noted that in light of the applicant’s revised PME selectee status, the PME recommendation statement on the contested report remains inaccurate under the additional rater's block. Therefore, the applicant is now requesting that the information be administratively corrected and has submitted a statement with new proposed indorsements from the additional rater to reflect "Captain M. record of performance in the unit identifies him as a number one candidate and he is immediately available for selection to attend in-residence PME. Recommend that he attend the Armed Forces Staff College or Air Command and Staff College.” The complete DPSIDEP evaluation is at Exhibit N. AFPC/PB did not provide a recommendation and deferred to DPAPF’s advisory. They noted that during the time frame in question, officers who were selected as "candidates" by their central promotion board for possible in-residence attendance at ISS potentially went on to meet central "school designation" boards convened by DPAPF. However, DPAPF states in their advisory that there is no AFI provision for supplemental consideration for school designation. The complete PB evaluation, with attachments, is at Exhibit O. AFPC/DPSOO recommends denial of the request for a direct promotion to the grade of colonel. DPSOO states that to grant a direct promotion would be unfair to all other officers who have extremely competitive records and also did not get promoted. Should the Board approve the change to the OER, they recommend approval of an SSB for any promotion board where the OER was a matter of record. They would also recommend that the applicant write a letter to the promotion boards to advise them of his ISS candidacy and that through no fault of his own, he was unable to attend in residence. Further, they noted the applicant's case is not unique. There have been many cases where an officer has gone through the SSB process to be relooked for candidacy, been selected, but unable to attend because they are already outside the window of eligibility to attend. To grant resident credit to the applicant would be unfair to those officers who are in the same situation. In addition, since 2005 CSBs have not been used to select officers for resident school. If an officer is selected for school candidacy by an SSB, there would be no provisions to authorize an SSB for residency selection. The DPSOO evaluation is at Exhibit P. AFPC/JA recommends denial of the applicant’s request for reconsideration, noting that the applicant has failed to meet the prerequisites for reconsideration and that his case should be returned without action or denied on that basis. As pointed out in the Board’s letter, this submission by the applicant represents the latest in a line of applications and AFBCMR decisions going back to 1994. As a result of the most recent, the Board ordered a correction to the applicant's OER closing 16 Feb 84, by amending the rater and indorser comments to add a recommendation to attend Air Command and Staff College (ACSC) in-residence, and by directing an SSB for the applicant's below-the-zone (BPZ) and subsequent boards for which the corrected OER was a matter of record. The applicant's requests to be credited with in-residence attendance at ACSC and to be directly promoted to colonel were denied by the Board. In his letter of 22 Jul 10, which applicant styles as a request for reconsideration of the Board's 2 Mar 10 decision, the applicant offers two reasons in support of the request: 1) neither he nor his (previous) attorney ever received the BCMR decision and were thus denied the opportunity to reply to/rebut the advisory opinions therein; 2) he desires to offer what he terms newly developed information in the form of letters from his additional rater on the contested 1983 - 1984 OER. JA considers the letter from the Board dated 15 Jun 10, to be dispositive of that issue. In that letter, the AFBCMR Executive Director, stated that the advisory opinions were sent to the applicant's attorney in time to allow a response within the allotted time period. No response was ever received; thus, the case remains closed unless the applicant was to provide additional documentary evidence in support of a request for reconsideration. Further, the bulk of the applicant's 22 Jul 10 request is devoted to comment and rehashed argument with respect to the advisories provided to the Board in conjunction with its Mar 10 decision, without the benefit of any new evidence in support thereof. The law has made clear that "argument," defined as an effort to establish by a course of reasoning, is not evidence. Similarly, "new or rehashed arguments do not constitute 'new evidence' as that term is used in the governing directives. JA opines for this reason, with respect to that portion of his request, the applicant has failed to meet the requisite regulatory standard for reconsideration, and that portion of the request should therefore not be referred to the Board. There are also serious questions whether the remainder of the reconsideration request meets the requisite criteria discussed above. The letters from the former additional rater are dated 25 Jul 08, almost two years before the Board's Mar 10 decision. It is difficult to understand why it took some two years after the letters were signed to finally submit them to the Board. Were they not reasonably available prior to the Board's decision? JA suggests they were. The assertion by applicant that he was waiting to submit them with a rebuttal to the 2008 BCMR case advisories does not change the fact they were reasonably available for almost two years before the Board rendered its decision. Nevertheless, they have no objection to changing the wording from that already approved by the Board to that now offered by the former additional rater. They do not believe, however, that such a change constitutes a material change that warrants additional SSB consideration. At most, it constitutes a minor grammatical correction. Additionally, as noted in the DPAPF advisory, there is no process in place to "do over" an in-residence service school selection. Even if there were, the passage of time has resulted in the destruction of records that would likely have been used. Notwithstanding, they do not believe the applicant has been unfairly prejudiced by the inability of the Air Force to now conduct a new consideration for in-residence service school. Moreover, even if the applicant were somehow now selected, he could not attend. Therefore, they agree with DPAPF that under these circumstances it would constitute an undeserved windfall to give the applicant credit in his record for completing in- residence service school that he never attended, let alone completed. The AFBCMR obviously agreed with this conclusion in its Mar 10 Record of Proceedings and made it part of its decision. Given that the Board in that decision had also granted the applicant a correction to his 1983-1984 OER by adding rater and additional rater recommendations for ACSC-- essentially the same request being made now with the tender of the retired colonel's letters-nothing in this reconsideration request warrants a change to that 2010 determination. For the same reasons, it also does not warrant new SSB consideration. Finally, they agree with DPSOO that even if applicant had completed in-residence ISS, it would not have guaranteed promotion, as it constituted just one of multiple factors utilized in the whole person concept. On a final note, the applicant was denied a direct promotion in the Mar 10 BCMR decision and the facts and circumstances supporting that decision have not changed. Both then and now, the applicant has utterly failed to establish any basis for a direct promotion. The complete JA evaluation is at Exhibit Q. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 11 Jul 12, the applicant requested an extension to provide a response to the Air Force evaluations and his case was again closed without prejudice. On 8 Jan 13, the applicant responded. In his rebuttal, the applicant provides additional evidence to support his appeal, including letters from senior officers who served on active duty during the period under review. He believes the statements and experience of these senior officers would be extremely valuable to the Board’s deliberation on his case. He states that the statements support his case and contends that: 1. If he had been properly identified as a candidate for selection to attend ISS in 1984, he would have been selected for in-residence ISS attendance. 2. At the completion of ISS, his Air Force career would have been significantly different and he would have been assigned to high visibility, career-enhancing positions that led to early promotions, in-residence Senior Service School (SSS), selected for key command positions, and possibly considered for promotion to general officer. 3. At a minimum, his original Colonel CSB would have selected him for promotion to colonel in 1993. In addition, he amended his application as noted earlier in his request. He disagrees with the JA advisory and has provides evidence that he believes meets the criteria for reconsideration, especially, in light of the Executive Director’s letter which extended that option to him. Additionally, he provides statements from other senior officers of the significance of having being selected as a candidate for ISS and a subsequent selection to ISS would have had on his career and promotion potential. DPSOO has provided no evidence that had he been selected as a candidate appropriately, he would not have been selected to attend ISS, and put his career on a significantly different path of progression. The comments from DPSIDEP and their support of his request are noted; however, he believes in totality that his case is so unique that it can only be remedied by a direct promotion to the grade of colonel. In further support of his appeal, the applicant provides copies of letters of support from his former rater, additional rater, and indorser; letters of support from several senior officers, and various other supporting documents. The applicant’s complete response, with attachments is at Exhibit S. ___________________________________________________________________ THE BOARD CONCLUDES THAT: 1. In an earlier finding, the Board determined that the applicant's OER should be amended in Sections VI and VIII and that he received SSB consideration for promotion to the grade of colonel. On 25 Sep 06, the applicant was selected for PME candidacy by SSB for the CY83 ISS. The Board also determined there was insufficient evidence to warrant changing his records to reflect that he was credited with in-residence attendance at ACSC or that he be directly promoted to the grade of colonel. The applicant is again requesting changes to his OER and that he be directly promoted to the grade of colonel with back pay and allowances. As such, he believes this, coupled with the evidence from his former chain of command warrants consideration for a direct promotion to the grade of colonel. However, after thoroughly reviewing the additional documentation submitted in support of his appeal and the evidence of record, we do not believe the applicant has overcome the rationale expressed in the previous Board's decision. We note the Board has, on several occasions, found the applicant has received fair consideration for promotion through the SSB process. Therefore, we find no basis upon which to circumvent the SSB process and direct his promotion to the grade of colonel. While several Air Force Offices of Primary Responsibility (OPRs) recommend his records reflect ISS candidacy and the revised statements by his supervisory chain again be considered by an SSB, we disagree. As pointed-out by JA, given the Board previously granted the applicant a correction to his 1983-1984 OER by adding a rater and additional rater recommendations for ACSC--essentially the same request being made now, there is nothing in this reconsideration request that warrants a change to that 2010 determination. For the same reasons, it also does not warrant a new SSB consideration. Further, we recognize that in all cases, we cannot make an officer completely whole and therefore, strive to provide substantial equity. In this regard, we note the applicant has benefited greatly from the correction of records process. As a result of several previous applications to this Board; an OER closing 1 Jan 88 was voided and he received SSB consideration by the CY92, CY93, and CY94 Colonel Boards; his nonselections for promotion to the grade of colonel were declared void, and he received SSB consideration with a reaccomplished Promotion Recommendation Form (PRF) with a "Definitely Promote" recommendation; an OER closing 30 Apr 75 was declared void and he again received SSB consideration for promotion to the grade of colonel, and AF Forms 77, Supplemental Evaluation Sheets, closing 30 Apr 75 and 1 Jan 88 were amended and he received SSB consideration; all in all he has been reconsidered for promotion to the grade of colonel on numerous occasions by an SSB. Over the course of its adjudication of his requests for almost 20 years, the Board has gone to great lengths to ensure his records are correct in order to provide him fair and equitable consideration for promotion. In view of this and noting the previous corrections to his records, we are not inclined to favorably consider his requests. Therefore, we agree with the opinions and recommendations of JA and DPPPO and adopt their rationale as the bases for our conclusion the applicant has failed to sustain his burden that he has suffered an error or an injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 2. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2008-01427 in Executive Session on 16 July 2013, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-01427 was considered: Exhibit F. Record of Proceedings, dated 2 Mar 10, w/atchs. Exhibit G. Letter, AFBCMR, dated 15 Jun 10, w/atchs. Exhibit H. Letter, Applicant, dated 26 Jul 10, w/atchs. Exhibit I. Letter, AFBMCR, dated 14 Sep 11, w/atchs. Exhibit J. Letter, Applicant, dated 27 Sep 11, w/atchs. Exhibit K. Letter, Applicant, dated 15 Nov 11, w/atchs. Exhibit L. DD Form 149, dated 17 Nov 11, w/atchs. Exhibit M. Letter, AFPC/DPAPF, dated 11 May 12. Exhibit N. Letter, AFPC/DPSIDEP, dated 21 May 12, w/atchs. Exhibit O. Letter, AFPC/PB, dated 1 Jun 12, w/atch. Exhibit P. Letter, AFPC/DPSOO, dated 15 Jun 12. Exhibit Q. Letter, AFPC/JA, dated 21 Jun 12. Exhibit R. Letter, SAF/MRBR, dated 2 Jul 12. Exhibit S. Letter, Applicant, dated 24 Dec 12. Panel Chair 3