r 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  93-01359 

COUNSEL: 
HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 

.. 

The  Officer  Effectiveness Report  (OER) closing  15 June  1988  be 
amended  to  reflect  AF/XO  indorsement  or,  that  the  report  be 
amended  in  such  a  manner  to  clearly  show  the  document  was 
rendered under an illegal controlled indorsement system. 
All  Promotion Recommendation  Forms  (PRFs) written  on  him  while 
the OER closing 15 June 1988 was on file be deleted. 

His  nonselections  for  promotion  to  the  grade  of  lieutenant 
colonel  by  the  CY89  and  all  later boards  be  declared  null  and 
void. 

His record be corrected to reflect selection for promotion to the 
grade  of  lieutenant  colonel  in the promotion  zone  ( I P Z )   by  the 
CY89 lieutenant colonel board, and that he be awarded appropriate 
back  pay,  other  entitlements  and  additional  relief  as 
appropriate. 

APPLICANT CONTENDS THAT: 
The contested report was prepared  in violation  of  the  governing 
regulation when the' indorsement level was determined by promotion 
eligibility  rather  than  demonstrated  job  performance. 
The 
indorsement  level was  based  on  an  illegal quota  system  imposed 
within  AF/XO. 
This  effectively  \\tainted" this  OER,  the  most 
critical OER  in his  file as it was the \\last" OER  received, and 
it was  near  the top of his  file when  his  record was  considered 
for award of a "Definitely Promote" recommendation as well as for 
promotion at the C Y 8 9   (and later) lieutenant colonel boards. 
The  result  of  the  illegal  indorsement  control  system,  which 
tainted  the  contested  OER,  became  a  compounding  error. 
The 
Promotion  Recommendation  process  relies  on  the  "Record  of 
Performance''  which  is  basically  the  officer' s  "OER/OPR"  file . 
Therefore, as his  record of  performance was  tainted, his  senior 
rater  did  not  have  an  accurate performance  file  upon  which  to 
base  his  recommendation,  and  the  Management  Level  Evaluation 
Board  (MLEB) was  similarly denied  a  record  of  performance  from 

93-01359 

which  to  "quality review" his  PRF  and/or  award  any  carry-over 
"DPs . '' 
His  accomplishments  in  Joint  Stars,  including  several  combat 
missions  during Desert Storm, as well  as his +ZOO0  hours flying 
time  were  not  seen  by  the  boards. 
His  record  was  also  not 
complete a s   not all of his professional military education  (PME) 
was included - PME completed in good faith both to demonstrate to 
promotion boards his intent to improve himself and to enhance his 
professional  capabilities.  Before  the board,  he  had  completed 
Air War College  (AWC) by seminar, a fact not reflected within his 
record. 

5 

The promotion board  and evaluation  system board  proceyes which 
considered his record for promotion were contrary to statute, DOD 
Directive,  and  Air  Force  regulation.  Air  Force  promotion  and 
evaluation  procedures  not  only  denied  him  substantial  rights 
guaranteed by  statute,  DOD  Directive, and  regulation, but  as  a 
result  of  these  violations,  he  was  never  nonselected  for 
promotion by a legally convened board. 

The MLEB  (due to the procedures involved) effectively denied him 
several  safeguards  guaranteed  by  statute,  and  the  whole  MLEB 
process effectively usurps selection authority given specifically 
to  "Selection Boards" convened  under  the  guidelines  of  10  USC 
Chapter 36. 

An SSB would not be able to resolve hi&  selection status for two 
reasons:  (1) as a  result of  the illegally convened, illegally 
conducted  board ( s )  ,  the  benchmark  records  would  not  be 
representative of  the  quality  of  the  records  at  the  "cut  o f f "  
point  for the board(s) , and  (2) the  scoring system employed  by 
the  Air  Force  is  arbitrary  and  capricious  as  the  "benchmark 
records" do  not  reflect  the  "bottom  scoring  selectees  and  top 
scoring nonselectees."  Therefore, request the Board grant a full 
measure of relief and correct his record to reflect selection f o r  
promotion at the CY89 lieutenant colonel board. 

In  support  of  his  request,  applicant  provided  his  19-page 
statement, and a statement from the senior rater reflected on the 
PRF  prepared for the CY89 lieutenant colonel board.  (Exhibit A) 

STATEMENT OF FACTS: 

On  4  September  1973,  applicant  was  appointed  as  second 
lieutenant, Reserve of the Air  Force, and voluntarily ordered to 
extended active duty.  He served on continuous active duty, was 
integrated  into  the  Regular  component  on  14  June  1977,  and 
progressively promoted to the grade of major. 

A resume of applicant's  OERs/OPRs follows: 

2 

. 

. 

93-01359 

PERIOD CLOSING 

OVERALL EVALUATION 

13 Mar 74 
15 Mar 75 
5 Jan 76 
4 Jun 76 
28 Feb 77 
31 Aug 77 
10 Oct 78 
8 Apr 79 
22 Jun 79 
23 Apr 80 
23 Apr 81 
23 Apr 82 
23 Apr 83 
20 Nov 83 
2 Jul 84 
2 Jul 85 
2 Jul 86 
15 Jun 87 
15 Jun 88 
25 Jan 89 
6 Oct 89 
1 Sep 90 
23 Aug 91 
23 Aug 92 

* 
# 
* *  
# #  
*** 
# # #  
*  Contested  report. 
Assistant DCS/Plans and Operations. 

.. 

Education/Training Report 
Outstanding 
1-1-2 
1-1-1 
2-2-2 
Abbreviated Report 
1-1-1 
1-1-1 
Education/Training Report 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
Education/Training Report 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 

The  final  indorser  on  the  report  was  the 

#  -  Top  report  on  file  when  considered  and  nonselected  for 
promotion  by  the  CY89  Central  Lieutenant  Colonel  Board,  which 
convened on 15 May 1989. 
* *   -  Top  report  on  file  when  considered  and  nonselected  for 
promotion by the CY90 Lieutenant Colonel Board, which convened on 
16 January 1990.  Applicant was selected for initial continuation 
by the CY90 Major Selective Continuation Board. 

# #   -  Top  report  on  file  when  considered  and  nonselected  for 
promotion by  the CY91A Lieutenant Colonel 
which  convened 
on 15 April 1991. 
* * *   -  Top  report  on  file  when  considered  and  nonselected  for 
promotion  by  the CY91B  Lieutenant Colonel  Board,  which  convened 
on 2 December 1991. 

Board, 

# # #   -  Top  report  on  file  when  considered  and  nonselected  for 
promotion by  the CY92B Lieutenant Colonel Board,  which  convened 
on 16 November 1992. 

(Examiner's Note:  Copies of the contested OER  and  the  PRFs  for 
the CY89, CY90A, CY91A and CY91B lieutenant colonel boards are at 
Exhibit B.) 

3 

. 

c 

93-01359 

On  31 March  1993, applicant was  relieved  from active duty  and 
retired effective 1 April  1993 under the provisions of AFR  35-7 
(mandatory retirement  on  established  date  -  maximum  years  of 
service).  He was  credited with  20 years and  12 days of active 
service for retirement. 

8 

AIR FORCE EVALUATION: 

The  Appeals  and  Analysis  Branch,  AFMPC/DPMAJA,  reviewed  this 
application and  recommended it  be  time-barred.  If considered, 
DPMAJA recommended denial for lack of merit.  Their comments, in 
part, follow. 

Noting  applicant's  contention  that  he  was  denied  a  lieutenant 
general  indorsement  to  the  contested  OER  by  an  illegal  quota 
system, DPMAJA stated the initiative incorporated into IMC 85-1 
to AFR  36-10, effective 1 April  1985, was that indorsement level 
deviations not be made solely to authorize indorsement by higher 
level  evaluators. 
Not  eliminated,  however,  were  voluntary 
escalations consistent with the best interests of the Air  Force. 
Even though the OER was forwarded to the office of the AF/XO, the 
decision to sign or not sign, was the AF/XO's. 

The individual who signed the statement provided with applicant's 
appeal, stated he had made the decision, finally, to have the OER 
indorsed  by  the  AF/AXO.  He  doesn't  state,  however,  that  the 
finality  of  that  decision was  his  alone.  In  contrast,  DPMAJA 
finds it is only the applicant's  personal opinion that it was not 
the "agency head" who had made that choice. 

Regulatory guidance  was  that  the  AF/XO  could  have  indorsed  the 
OER  himself,  had  it  indorsed  by  his  assistant,  or  returned  it 
without  action. 
That  he  ultimately  decided  not  to  sign  the 
report is not an error or injustice. 

Additionally,  the  applicant  cites  that  statement  as  clear 
evidence  the  regulation  was  violated  in  the  indorsement  level 
decision  in  his  case  since  it  was  determined  by  promotion 
eligibility  rather  than  demonstrated  j o b   performance. 
The 
regulation specifically prohibits any numerical quotas or forced 
distribution  of  ratings.  Even  so,  the  applicant  attempts  to 
equate  the  optional  final  indorsement  level  with  the  term, 
"rating," and  thus  lead  the  AFBCMR  to  the  conclusion  that  a 
senior officer's  decision not to indorse a particular OER somehow 
constitutes  a  regulatory  violation. 
If  true,  the  inescapable 
conclusion  would  be  that  the  most  senior  officer  in  a  ratee's 
evaluation  chain  was  somehow  obligated  to  sign  all  reports 
rendered  on  officers  under  h i s   or  her  command. 
Lastly, 
regardless of what  the applicant has  said about the indorsement 
level, it is not a rating.  Ratings are those marks on the front 
and  back  side  of  an  OER  as  an  evaluation  of  an  officer's 

4 

93-0 1359 

performance  and  performance-based promotion  potential.  All  of 
the prohibitions concerning "quotas" or  "forced distribution of 
ratings" do  not  apply  to  optional  indorsement  levels.  Thus, 
applicant's  arguments  that  the  lack  of  an  AF/XO  indorsement 
somehow  constitutes  a  regulatory  violation  are  fundamentally 
flawed . 
assertions  relating  to  why  he  was 
Regarding  applicant's 
nonselected  are  only  his  opinions.  Violations,  regulatory  or 
technical, are not in evidence.  The documentation provided does 
not constitute sufficient evidence to excuse those nonselections 
or provide a basis for direct promotion to 1ieQtenant colonel. 

In regard to applicant's  allegations his records were incomplete 
or  in error  regarding his  PME  and  flying hours,  senior service 
school  information has  not  been  included  in  the  OSB  of majors 
being considered for promotion to lieutenant colonel since 1987 
and beyond.  While he completed AWC prior to the board, evidence 
of  that  fact  would  have  been  masked  from  his  and  every  other 
major's  OSB.  On  that basis, he was  not  treated unfairly.  His 
2000 plus flying hours are listed on the OSB, but improperly.  He 
has  not  shown  what  actions,  if  any,  were  taken  to  effect  a 
correction. 

The  checks and balances of  the  PRF process  help  to ensure that 
all eligibles receive equal opportunities for a DP rating.  There 
is no evidence to show that applicant didn't.  He would have been 
provided  a  copy  of  his  PRFs  approximately  30  days  before  each 
board.  Had he determined there was  a problem with the PRFs,  or 
the recommendation provided, it has not been  shown what  action, 
if  any,  was  taken  to  effect  a  correction prior  to each  of  the 
respective boards.  Those contemplating a change to an inaccurate 
PRF are  required  to  use  the criteria outlined  in AFR  36-10  and 
the  procedures  outlined  in  AFR  31-11. 
These  procedures  were 
developed because it would be next to impossible to duplicate the 
quality control process or competitive award process and scrutiny 
to which the PRF  had been subjected to originally.  Thus, the Air 
Force  only  requires  certification  from  those  involved  in 
preparing  the  original  PRF to effect  the  correction.  As  such, 
applicant's  conclusion that correction of a  PRF under AFR  31-11 
is impossible, is clearly based only on  his  faulty premises-not 
on facts. 

Lacking  evidence  to  the  contrary,  DPMAJA  believes  the  senior 
rater was  totally  familiar with  the  applicant's  performance  and 
performance-based  potential  and  that  he  had  an  in-depth 
perspective of his accomplishments.  Based on that knowledge, he 
assigned  the  Promote  recommendation. 
In  light  of  that  same 
knowledge,  he  was  the  best  qualified  advocate  to  support  the 
applicant at  the MLEB  for any possible aggregation or  carryover 
DP  allocations. 
DPMAJA  found  no  evidence  that,  assuming  an 
indorsement  by  the  AF/XO  to  the  15  June  1988  OER,  the  senior 
rater would have provided a higher rating in the form of a DP. 

5 

93-01359 

DPMAJA  noted  applicant's  discussion  of  how  the  general  MLEB 
process  is  a  violation  of  10  USC,  Section  611.  Applicant's 
senior rater was a member of the MLEB  which he faults and the one 
most  familiar  with  his  performance  and  performance-based 
As  a  MLEB  member,  his  senior  rater  would  have 
potential. 
represented him at that board.  His officer selection record and 
the  completed  PRF  would  have  been  reviewed  along  with  similar 
documents  for  all  other  officers  assigned  to  that  same  senior 
rater  for  aggregation or  carryover DP allocations.  Failing  to 
get a DP, he now questions the legality of this MLEB  process but 
without 
technical  violations. 
Consequently, all his arguments in this regard are deemed to be 
without merit.  Nonetheless, the MLEB  is not covered under 10 USC 
611  and  is  not  required  to  meet  the  selection board  criteria 
outlined therein. 

regulatory  or 

proof 

of 

Regardless, the MLEB  doesn' t "preselect" officers for promotion- 
it  simply  reviews  and  evaluates  the  officer' s  record  of 
performance  (ROP)  to provide performance-based differentiation to 
assist  central  selection  boards  in  identifying  who  is  best 
qualified  for  promotion,  while  ensuring  officers  receive 
equitable consideration in the promotion recommendation process. 
It  also  evaluates  eligibles  for  aggregate  and  carryover  DP 
allocations and identifies and discusses with appropriate senior 
raters those  PRFs  with  recommendations which  appear unsupported 
by members'  ROP. 

In  reference  to  applicant's  claims  that  the  process  of  the 
central selection boards is not based on statutory requirements, 
DPMAJA  believes  it's  important  to  reflect  on  comments  by 
competent legal authority.  "There is no provision  of  law which 
specifically requires each promotion board  to personally  review 
and score the record of each officer that is being considered by 
the board ..." was  noted by  AF/JAG  in its opinion addressing the 
participation  of  selection  board  membership  in  the  selection 
process  (copy attached). 

The  language  in  the  above  cited  AF/JAG  opinion  denotes  that 
panels  are  a  type  of  administrative  subdivision  of  selection 
boards.  At the time the Defense Officer Personnel Management Act 
(DOPMA) was enacted, the Congress was  aware of the existence of 
promotion  board  panels  and  their  use  as  administrative 
subdivisions  of  promotion  selection  boards  and  had  no  problem 
with  them.  It  was  not  the  expectation  of  Congress  that  each 
board member would review each and every record considered by the 
board. 

The  Air  Force  has  long  used  the  panel  concept  in  conducting 
selection  boards  based  primarily  on  the  stiff  competition 
generated  as  a  consequence  of  the  number  of  eligibles.  Such 
large  numbers  require  an  equal  distribution  of  the  quality 
spectrum  of  records  among  panels.  Records  are  distributed  to 
panels  in an order based  on the reverse order of the individual 
social  security numbers.  This  is  intended  to  ensure  a  random 

6 

93-01359 

distribution of quality  at  each panel.  Even  then, the concept 
has  safeguards  to  ensure  an  equal  distribution  of  the  quality 
spectrum of records to each panel. 

Each panel's  task is to align the records assigned to it in an 
order of merit and break ties when the quota runs out at a score 
category that has more records in it than the quota allows to be 
promoted  (commonly referred to as the gray zone) .  When  a panel 
resolves  its  gray  zone  ties,  it  becomes  aware  of  the  lowest 
selects and the highest nonselects on its order of merit and must 
determine if the lowest select is fully qualified for promotion 
as is required by law. 

. 

The panel understands all records scoring higher on its order of 
merit than the lowest select are also selects.  In essence, each 
member  is  required  to  certify  that  the  corporate  board  has 
considered each record.  This same logic applies to the follow-on 
requirement  that  each  board  member  certify  that,  in  his/her 
opinion,  the  recommended  officers  are  the  best  qualified  for 
promotion. 

One  of  the major  responsibilities of  the board  president  is  to 
review the orders of merit  to ensure consistency of scoring and 
quality among the panels.  There has never been a requirement for 
individual  members  to  "carefully  consider  the  record  of  each 
officer  whose  name  was  before  them." 
Such  a  requirement  is 
levied only  on  the  corporate board  by  the  specific language of 
Section 617c. 

Applicant  stated  that  a  "secret" system  called  the  "projected 
order of merit" (POM) system "plays a major role in the selection 
process."  This is simply not a \\secret'' system.  Board members 
were provided an explanation of its use as a management  tool  to 
assist  the  board  president  in  his  responsibility  for  quality 
review. 

The POM is a computer-based statistical analysis that predicted, 
on  the basis  of past  boards, how  any given individual might  be 
scored  on  the  current  board. 
If,  in  the  board  president's 
opinion, any record so identified appeared out of place, quality- 
wise,  in comparison to other similarly scored records, he  cbuld 
send it to another panel for a revote and independent evaluation. 

As a result of this process, all the board president is doing is 
exercising his responsibility to ensure the scoring of records is 
accomplished equitably. 

As to applicant's  claims that board members never see a selection 
list, either from their panel or the board as a whole, before the 
"board" is complete, DPMAJA stated such a statement is true only 
in  part,  but  that  fact  in  and  of  itself  is  not  considered  a 
violation  of  10 USC  617 as  alleged.  The  specific language  of 
section  617 speaks to  the  corporate board,  not  to  individuals. 
There is no requirement for each and  every individual member  to 

7 

93-0 1 3 59 

carefully consider the record of each and every eligible.  This 
requirement is on the corporate board. 

The applicant claims he should now receive a direct promotion to 
lieutenant colonel on  the premise  he  has been denied  "fair and 
equitable  considerations" and  an  SSB  is  unable  to  resolve  his 
plight. 
The  reasoning  he  provides  for  his  nonselections 
constitutes mere  conjecture on his part  since the exact reasons 
for a selection or nonselection are usually not readily apparent. 
By  law,  selections must  be  based  on  a  "best  qualified" basis 
after applying the complete promotion criteria.  This results in 
extremely  keen  competition  among  the  eligibles but,  because  of 
Congressional constraints, not all can be selected. 

The complete evaluation is at Exhibit C. 

APPLICANT'S  REVIEW OF A I R   FORCE  EVALUATION: 
Applicant  reiterated  the  contentions  contained  in  his  initial 
appeal. 
He  disagreed  with  the  advisory  opinion  and  offered 
comments addressing specific issues in the advisory opinion. 

Applicant provided statements from the rater and additional rater 
on  the  report  in  question  as  evidence  that  the  report  was 
prepared using  rules which  specifically violated AFR  36-10.  He 
stated,  as  such,  this  report  is  clearly  flawed  and  correction 
must  be  made. 
Therefore,  he  requests  the  board  correct  the 
report to reflect AF/XO  indorsement. 
Regarding the OER,  applicant stated the evidence gleaned from his 
additional  rater,  which  states  this  report  was  rendered  in 
violation of  regulation, proves  this  report  should be  corrected 
completely or at minimum should be removed from his file.  Review 
of the "spin off" issue and  evidence surrounding the  PRF  itself 
(to include the process) also provides clear and convincing proof 
of error or injustice.  Although AFMPC  would have the board apply 
a legally impermissible standard of review of this evidence, the 
evidence  is  indeed  compelling  and  clearly  provides  substantial 
proof  of  error  and  injustice. 
Therefore,  request  the  board 
correct  the  injustice  in  his  record  and  upgrade  the  PRF  to  a 
"DP . I' 
As to the Air  Force selection board procedures, applicant stated 
the  evidence, particularly  the  evidence  not  disputed by  AFMPC, 
clearly  shows  the  "plain  language" of  statute,  directive  and 
regulation were  violated  by  Air  Force  conduct of  the  selection 
boards  that  considered  his  record.  For  these  reasons,  request 
the  Board  remove  and/or  set  aside  the  unjust  nonselections  he 
received by the selection boards that considered his record. 

Regarding the promotion  denied him  due to defective records and 
defective  board  proceedings,  he  believes  the  evidence  is  again 

8 

93-01359 

clear, that without the aberrations in record and proceedings, he 
would  have been promoted by  these selection boards.  He further 
believes the evidence is clear an SSB cannot provide him full and 
fitting relief both  due to the error(s) in record, but also due 
to the error(s)  in procedures of the original board  (compounded 
by the arbitrary and capricious scoring procedures used by SSBs). 
Therefore, he  requests the AFBCMR  correct his record- to reflect 
selection  for promotion  to  lieutenant  colonel  in the promotion 
zone. 

Applicant  provided  additional  comments  with  respect  to  the 
timeliness of his appeal. 

1 

Applicant's  24-page response, with attachments, is at Exhibit E. 

ADDITIONAL AIR FORCE EVALUATION: 

The  Evaluation  Procedures Section, AFMPC/DPMAJEP,  reviewed this 
application and recommended denial, stating the applicant has not 
provided  substantiated  proof  of  the  allegation  that  he  was 
illegally  denied  the  AF/XO  indorsement.  The  lack  of  an AF/XO 
indorsement is not a violation of regulatory provisions or action 
that would  cause the OER  to be  flawed.  In accordance with AFR 
36-10, para  2-23a(2), DPMAJEP  found no  illegal  action  in which 
the  AF/XO  took  to  deny  the  applicant  an  AF/XO  indorsement. 
(Exhibit F) 

The Senior Attorney-Advisor, AFMCP/JA, reviewed this application 
and  recommended  it  be  time-barred  under  the  traditional  rules 
found  in  10  USC  1552  and  AFR  31-3,  and  that  it  is also  stale 
under the doctrine of laches.  Their comments, in part, follow. 

Applicant  first maintains  that  his  OER  was  "closed  out" below 
AF/XO  (three  star)  level  by  the  wrong  individual;  L e . ,   by 
regulation,  only  the  AF/XO  himself,  as  the  agency  head,  could 
determine whether  to indorse the report or  send the report back 
without action  (AFR 36-10, para 2-23a (2) )  .  Applicant relies for 
this conclusion on the statement in the letter from Major General 
W---  [the senior rater]  that  "I  made  the decision, finally, to 
have your OER closed out by the AXO."  In JA's  opinion, applicant 
has  both  misinterpreted  the  cited  paragraph  and  misstated  the 
facts relevant to the situation.  The subparagraph cited above is 
one  of  several  examples  illustrating  the  point  of  the  main 
paragraph that rating chains are flexible and can be modified to 
fit  the  needs  of  the  particular  unit.  The  subparagraph  cited 
above  represents but  an  example  "where this  flexibility may  be 
exercised" (emphasis added).  It certainly does not constitute a 
binding  requirement. 
In  any  case,  JA  agrees  with  DPMAJEP 
(Exhibit F)  that  the  evidence  submitted  by  applicant  does  not 
even  prove  a  deviation  from  the  structure  contemplated  by  the 
subparagraph. 
The  additional  rater's  letter  included  in 
applicant's  package states that when he talked with AF/XOO about 

9 

93-0 1 3 59 

the applicant's  OER, the latter concurred with his recommendation 
for  an  AF/XO  indorsement  "and  indicated  he  would  discuss  this 
with  General  D---." 
Consequently, it is J A ' s   opinion that the 
greater  weight  of  evidence  available  indicates  that  the  staff 
agency  head  ( A F / X O ) ,   at  a  minimum,  was  consulted, and  that  he 
concurred in the action taken by AF/XOO. 
Applicant  first  maintains  that  his  OER  was  "closed o u t"   below 
AF/XO  (three  star)  level  by  the  wrong  individual;  Le.,  by 
regulation,  only  the  AF/XO  himself,  as  the  agency  head,  could 
determine whether  to indorse the report or send the report back 
without  action  (AFR  36-10, para,  2-23a (2) ) .  --He relies f o r   this 
conclusion on the statement in the letter from (Ret) Ma]  Gen W--- 
that "I made  the decision, finally, to have your OER closed out 
by  the  AXO."  The  governing  regulation  at  the  time, AFR  36-10 
(dated 2 5   Oct 8 2 ) ,   at para 2-23a(2) , provided: 

A  report  is  sent  to  a  wing  commander  or  a 
( 2 )  
headquarters staff agency head for endorsement.  The wing 
commander  or  staff  agency  head  may  indorse  the  report, 
have  their  vice  commander or  deputy  indorse  the  report, 
send the report back without action allowing the previous 
evaluator to be the final indorser .... 

In JA's  opinion, applicant has both misinterpreted this paragraph 
and  misstated  the  facts  relevant  to  the  situation. 
The 
subparagraph quoted above is one of several examples illustrating 
the point  of the main paragraph that rating chains are flexible 
and can be modified to fit the needs of the particular unit.  The 
subparagraph quoted above represents but  an example  "where this 
flexibility  may  be  exercised"  (emphasis added).  It  certainly 
does  not  constitute  a  binding  requirement. 
In  any  case,  JA 
agrees with DPMAJEP that the evidence submitted by applicant does 
not even prove a deviation from the structure contemplated by the 
subparagraph. 
The  additional  rater's  letter  included  in 
applicant's package states that when he talked with AF/XOO about 
the applicant's OER, the latter concurred with his recommendation 
for  an  AF/XO  endorsement  "and  indicated  he  would  discuss  this 
Consequently,  it  is  JA's  opinion  that  the 
with  General  D---.'I 
greater  weight  of  evidence  available  indicates  that  the  staff 
agency head  here  (AF/XO), at a minimum, was  consulted, and that 
he concurred in the action taken by AF/XOO. 
Applicant  next  contends  that  "promotion  eligibility"  was 
improperly  used  as  a  criterion  to  deny  applicant  an  AF/XO 
endorsement  f o r   his  OER.  He  cites  the  former XOO's  statement 
that the  "guidance we were working with prior  to the new  system 
coming  in was  to throttle back  and  use  the  three and  four  star 
signatures  for  fast  burners  and  'saves' only,"  as  proof  that 
promotion eligibility formed the basis for the decision to change 
the endorsement  level  for his  own OER  from that  recommended  by 
his  immediate  supervisors. 
He  neglected  to  quote  the  next 
sentence  from  the  former  XOO's  letter  that  "we  had  not  gotten 
that  'pure' at the time your  (applicant's) OER was prepared, but 

10 

. 

93-0 1359 

we were well  on our way."  In truth, applicant has provided  no 
convincing  evidence  that  his  OER  was  denied  an  endorsement  in 
favor of anyone less deserving.  The other letters solicited by 
applicant  suggest  that  a  cutback  in  the  number  of  top  level 
endorsements  began  to  occur,  but  more  along  the  lines  of  the 
soon-to-be-implemented OES; there are no indications that in-the- 
zone candidates were being  sacrificed to accommodate--either APZ 
or BPZ  numbers.  Thus, such action would not violate AFR  36-10, 
Atch 1, para 6d  (formerly para 1-7b, but redesignated by IMC 84- 
2),  cited  by  the  applicant. 
And  the  reported  XO  policy  to 
constrain the issuance of the highest endorsement levels did not, 
in JA's  opinion, violate any other provisions-. of the regulation 
either.  The  evidence  offered  by  applicant  does  not  prove  the 
establishment  of  any  quotas  or  rating  distributions within  XO 
that would have violated para  3-le of the regulation.  Finally, 
JA noted that although the applicant's rater and additional rater 
may  have  desired  an  AF/XO  endorsement  for  applicant-having 
"targeted" or  "forecasted" such a result-that recommendation, in 
the end, was  obviously not adopted by  those responsible for the 
decision.  The disappointment that would naturally follow such a 
result, however, does not equate to error or injustice. 

Having  found  no  error  occurred  with  regard  to  applicant's  1988 
OER, JA likewise discerned no error in the applicant s Promotion 
Recommendation Forms  (PRFS) that followed.  Even  if one were  to 
assume  arguendo  that  applicant's  challenged  OER  contained  an 
erroneous  promotion  endorsement,  it  would  not  follow  that 
applicant's  failure  to  subsequently  receive  a  "definitely 
promote"  (DP) PRF was  based  on  that  OER  endorsement.  Such  an 
argument constitutes speculation at best. 

Noting  applicant's  arguments concerning the  PRF  appeal process, 
JA stated the senior rater is clearly an inextricable part of any 
PRF  appeal  process  because  a  PRF  has  no  effect  or  existence 
without  the senior rater-the PRF's author.  The regulation does 
not  require the senior rater to compare the applicant's revised 
PRF with other records; rather, that individual is the person who 
must verify the inaccuracy of the original form and the accuracy 
of  any  proposed  correction.  Again,  that  must  be  an  absolute 
prerequisite  to correction as  the form cannot exist without  the 
senior rater.  The MLEB President, on the other hand, is required 
by regulation to "certify that compared to other records reviewed 
during  the  evaluation  process,  your  record  would  have  been 
competitive  for the  revised PRF assessment if the  circumstances 
which caused the original PRF  assessment had not existed." It is 
true  that  records of performance are not  necessarily maintained 
so as to be available to an MLEB president who might be asked to 
JA  disagrees  with  the  applicant, 
make  such  a  comparison. 
however,  that  this  fact  renders  a  meaningful  comparison 
impossible.  In  their  view,  the  regulation provision  does  not 
prescribe  a  literal  requirement  to  compare  actual  record  of 
performance  files.  Rather,  it  is  a  requirement  that  the  MLEB 
president,  utilizing  the maturity  and  experience that  goes with 
this position, compare an applicant's record against the general 

* 

93-0 1359 

standard  by  which  records  of  performance  in  that  particular 
organization at  that  time would  have  qualified  for an upwardly 
revised  recommendation.  While  they  would  never  hold  an  MLEB 
president to a requirement to remember every record considered by 
a  previous  board,  they  do  not  believe  it  to  be  impossible  or 
unreasonable  to  expect  that  an  MLEB  president  will  be  able  to 
recall  and  identify  the  general  standard  of  excellence  that 
records  falling  into  a  particular  category  (e.g.,  "Definitely 
This  is  the 
promote")  met  or  represented  at  that  time. 
comparison that is called for in the regulation, and they believe 
it  to  be  a  reasonable  requirement  to  support a  change  in  the 
promotion recommendation. 

Applicant  is  also  confused and  incorrect as  to his  conclusions 
that  the  AFR  31-11  requirement  exceeds  the  standard  of  proof 
required  by  10  U.S.C.  1552  and  is  illegal. 
First,  he 
misconstrues the meanings of the two standards of proof he cites 
when  he  states  that  the  requirement  for  senior  rater  or  MLEB 
president statements "clearly exceed  (sic) the standard of proof 
required by  10 U.S.C.  1552;  i.e.,  a  preponderance  of  evidence, 
not substantial proof."  In the first place, 10 U . S . C .   1552 does 
not  itself  provide  any  standard  for  proving  an  error  or 
injustice.  The case law, however, makes clear that a request for 
correction  must  be  supported  by  substantial  evidence  (not 
preponderance of the evidence).  See  e . g .  ,  B l a c k w e l l   v.  Marsh, 
D.C.  GA.  574  F.Supp.  210  (1982); S a n d e r s   v.  U n i t e d   S t a t e s ,   594 
F.2d  804,  812 
After  citing  the  definition  of 
"substantial  evidence" according  to  Black's  Law  Dictionary, JA 
stated the standard to support an action pursuant to either AFR 
31-3 or AFR  31-11 is not  improper or  unreasonably onerous.  On 
the contrary, it gives an applicant the benefit of any doubt. 

(1978). 

Applicant  argues  further,  however,  that  the  standard  of  proof 
required  to  specifically  change  a  PRF  constitutes  a  "but  for" 
test  "declared in  S a n d e r s   v.  U . S .   as  inappropriate  for  service 
correction boards. 
At  the outset, applicant offers no citation 
to  the  case  cited.  JA presumes  he  is  relying upon  S a n d e r s   v. 
U . S . ,   594 F.2d 804, 219 Ct.Cl. 2 8 5   (1979), a case cited above and 
which  has  been  cited  to  the  BCMR  on  numerous  occasions  for 
various  propositions,  and  which  indeed  discusses  the  use  of  a 
"but for" test by correction boards.  Applicant's reliance on the 
court's conclusion in this  case, however, is totally misplaced. 
In a  superficial and erroneous treatment of  the issue taken out 
of context, he  seeks to apply a  court's conclusion made  as to a 
Correction Board's treatment of an acknowledged error(s) in  the 
promotion  board  process  and  apply  it  to  determinations  of 
promotion r e c o m m e n d a t i o n s   (in the first instance) and appeals of 
those PRFs within an internal Air  Force appeals process  (in the 
In  S a n d e r s ,   the  problem  was  one  of  remedy-whether 
second). 
a d m i t t e d l y   e r r o n e o u s   OERs  contributed  to  nonselection  and  the 
officer's  ultimate  separation.  T h e   Court  rejected  the  BCMR'S 
test that an applicant must show he would have been selected for 
promotion  "but  for"  the  erroneous  report(s),  and  that  the 
regulations require only a showing of "probable material error or 

12 

93-0 1359 

injustice."  In S a n d e r s ,   the court said the real error was that 
the  BCMR  acted  as  a  "super  promotion  board"  rather  than 
correcting  the  error,  effectively  usurping  the  function  of  a 
promotion board.  In applicant's case, we are not dealing with a 
standard to be applied in obtaining correction board relief, nor 
are we talking about the effect of an acknowledged  error on the 
promotion process.  On the contrary, the issue here- is  whether 
any  error  has  occurred  within  an  internal Air  Force  promotion 
recommendation  procedure  (unlike  S a n d e r s ,   applicant  has  not 
proven the existence of any error requiring correction), wherein, 
as  noted  above,  by  design,  the  final promotion  recommendation 
(DP, P, DNP) cannot exist without the concurrehce of the officers 
who authored and approved it.  In short, the Court's analysis in 
S a n d e r s   simply does not apply to this situation. 
Finally, JA urges  the AFBCMR  to adopt  the Air  Force regulatory 
requirements for assessing any correction to a PRF.  First, to do 
so  would  recognize  that  the  award  of  a  PRF  is  part  of  an 
evaluation  process  that  is  a  totally  internal  Air  F o r c e  
administrative procedure which is not governed by statute or DOD 
Directive.  As  such, the Air  Force, through its regulations, is 
in  the  best  position  to  define  the  policy  and  requirements 
applicable to the system.  Second, as alluded to above, due  to 
the  necessarily  subjective nature  of  the  PRF,  the  BCMR  has  no 
objective  criteria  upon  which  it  could  determine  the 
appropriateness  of  a  recommendation. 
Indeed,  because 
determination  of  an  ultimate  recommendation  depends  upon  the 
personal knowledge of the individuals in the PRF process and not 
upon  retained  records,  JA  believes  the  BCMR  is  not  in  the 
position  to  independently determine a  promotion  recommendation; 
reliance  on  the  senior  rater  and  MLEB  president  per  the 
regulation is the best and only practical means to permit  a  PRF 
correction. 

Applicant next claims that the PRF process is contrary to statute 
because the MLEB  acts as a de facto promotion board.  In drawing 
that conclusion, applicant relies upon statistics that show that 
close  to  100%  of  the  officers  who  have  received  definitely 
promote  (DP)  promotion  recommendations have  been  selected  for 
promotion.  He  maintains  that  these  quotas  effectively  "fill" 
two-thirds of the promotion quota through the award of DPs.  The 
very  high  rates of  selection  f o r   promotion of  officers with  DP 
recommendations was  fully expected and  consistent with  the aims 
of  the  officer  evaluation program.  Moreover,  the  OES  program 
fully comports with the law and governing regulations.  Officers 
receiving DPs  are indeed those whom the system has identified as 
having  the  greatest  promotion  potential. 
When  the  officer 
evaluation  system was  developed, the  Air  Force expected  a  high 
correlation  (approaching  100%)  between  r r D P ~ ' l  and  promotion 
selection  because  of  the  emphasis  placed  on  performance. 
Consequently,  those  receiving  DP  recommendations  should  be  the 
most  qualified  officers  for promotion  at  the  central  promotion 
board. 

13 

1 

93-01359 

The officer evaluation system is just that-a system of evaluation 
and  not  one  of  ultimate  selection  for  promotion. 
It  is  the 
function of the OES  to assist  central selection boards to carry 
out  their  statutory duties  and  not  to preempt  or  replace that 
process . 
Applicant's  argument  that  officers  receiving  DP 
recommendations constitutes  a  pre-selection  of  these  officers, 
thereby  effectively  usurping  the  selection  board  statutory 
authority,  ignores  reality  and  is,  in  JA's 
view,  totally 
unsubstantiated.  Senior  raters, MLEBs,  and  "aggregate"  boards 
are all part of the Air  Force's  evaluation system designed once 
again to a s s i s t   in the promotion process.  Certainly critical to 
the  applicant's  argument  is  his  inescapable  conclusion  that 
selection  boards  are  necessarily  ignoring  their  statutory 
obligation  to  fully  consider the  records of all candidates and 
thereafter  exercise  their  independent  authority  to  select  only 
the  best  qualified.  The AFBCMR  should not,  in  the  absence  of 
proof, entertain such a notion.  It is an axiomatic principle of 
administrative law that  federal officials charged with  official 
duties are presumed to carry out those responsibilities according 
to  law;  i.e.,  a  presumption  of  regularity,  in  the  absence  of 
See  Sanders  v .   U . S . ,   supra,  at  302 
proof  to  the  contrary. 
(1979).  That the Air  Force has devised an additional tool  (the 
PRF)  to  assist  in  differentiating  officers'  performance  and 
potential  in  no  way  alters  the  selection  boards'  statutory 
obligation  with  respect  to  reviewing  records  in  the  selection 
process.  Selection boards are instructed that  they are to make 
the selections for promotion; P R F s   are aids in that process and 
nothing  more. 
To  suggest,  as  applicant  does,  that  selection 
boards only compare the "promote" records with one another after 
having  "rubber stamped" the selection of  all definitely promote 
candidates assumes a total abandonment of  their responsibilities 
by  board  members. 
In  the  absence  of  proof  of  such  serious 
charges,  JA  presumes  that  selection boards  have  followed  their 
instructions and performed their duties in the prescribed manner. 
Contrary  to  the  applicant's  implications,  an  MLEB  does  not 
determine who will receive particular promotion recommendations. 
Rather,  the  MLEB  determines only  DP  allocations.  An  officer's 
senior  rater  still  must  apply  the  allocations  and  ultimately 
decide  which  officers  receive  which  recommendations  or  are 
submitted for "aggregation" (see AFR  36-10, Chap 4). 
Applicant's argument that MLEBs  are  flawed because  they  fail to 
incorporate the safeguards required for Section 611 (a) boards is 
totally  without  merit.  Indeed, promotion  selection boards  a r e  
controlled by Title 10.  On the other hand, MLEBs  are part of the 
Air  Force's internal e v a l u a t i o n   system, one of  the  key purposes 
of which  is  "to provide  selection boards with  sound information 
to assist them in selecting the best qualified officers''  ( A F R   36- 
10, para 1-2).  It is n o t   p a r t   of the promotion selection process 
itself. 
As  a  consequence,  Title  10  requirements  do  not-and 
s h o u l d   not-apply to MLEBs  or  any other aspects of the OES.  To 
require  otherwise  would  suggest  that  OES  is  not  an  evaluation 
process, as it is, but merely a part of the promotion process. 

14 

Applicant avers that promotion selection boards in the Air Force 
are contrary to Air Force regulation, DOD Directives and statute. 
He  begins  with  an  argument  that  Air  Force  promotion  boards 
violate  10  U.S.C.  616  and  617.  Specifically, he  argues  that 
promotion  board  panels  operate  independently  of  one  another, 
thereby  rendering as impossible the promotion  recorn-endation by 
"a majority of the members of the board" mandated by 10  USC 616 
o r   the resulting certification required by  10 U.S.C.  617.  There 
is no provision of law that specifically requires each member of 
a  promotion  board  to personally  review and  score the  record of 
each  officer  being  considered  by  the  board: 
The  House  Armed 
Services Committee Report  (97-141) that  accompanied the  Defense 
Officer  Personnel Management  Act  (DOPMA) Technical  Corrections 
Act  ( P . L .   97-22)  specifically  references  panels  as  a  type  of 
administrative subdivision of selection boards.  Consequently, it 
is  clear  that  at  the  time  DOPMA  was  enacted,  Congress  was 
certainly  aware of  the existence of promotion  board  panels  and 
expressed no problem with them.  Furthermore, the language of 10 
U.S.C.  626(a)  and  (c)  (the  recommendation  for  promotion  of 
officers by selection boards)  not just 617 (a) (the certification 
by  a  majority  of  the  members  of  the  board),  speaks  to  the 
corporate  board  and  not  to  individual members.  In  essence, a 
majority of the board must recommend an officer for promotion and 
each member  is required to certify that the corporate board has 
considered  each  record,  and  that  the  board  members,  in  their 
opinion, have recommended those officers who  "are best qualified 
for promotion."  The members are not required to reach this point 
through an individual examination of every record, although they 
may do so.  Rather, based on their overall participation in the 
board's deliberations, and the fact that the process involves the 
random assignment of personnel files to panels and procedures to 
insure  that  the  range  of  scores  each  panel  reports  are 
essentially identical, the members are in a position to honestly 
certify  that  the  process  in  which  they  participated  properly 
identified, based  on the record before them,  those officers who 
were  best  qualified  for  promotion. 
In  JA's  opinion,  that  is 
enough to assure compliance with a11 the statutory requirements. 

Notwithstanding  this  analysis  above,  applicant  continues  to 
maintain  that  the  requirements of  statute cannot  be  met  by  Air 
Force  selection  board  procedures.  He  insists  that  only  some 
other  methodology  could  provide  the  requisite  compliance. 
Specifically,  he  refuses  to  acknowledge  that  panels-as  used  by 
the Air Force-can legally coexist with the provisions of sections 
616 and 617.  As he has stated over and over again, both of those 
sections require that members be  recommended for promotion by  a 
majority  of the members  of t h e   board.  The Air Force process, as 
The  report  of  the 
described  above,  meets  t h i s   requirement. 
selection  board,  signed  by  all  of  the  voting  members  of  the 
board,  constitutes the required recommendation.  While JA agrees 
that  the  Air  Force methodology  differs  from  the  other  services 
and  that  it  might  seem  unorthodox,  being  different  and  unique 
does not make it illegal.  The bottom  line is that it does  meet 

15 

93-01359 

the  statutory mandates.  And  the applicant  has  failed  to prove 
otherwise. 
Applicant's reliance as to the supposed condemnation of Air Force 
promotion  procedures  by  the  Senate Armed  Services Committee is 
just plain wrong.  He has chosen to ignore in his discussion the 
Committee's specific findings that "[tlhe  OSD  review did not f i n d  
...  systemic problems  with  respect  to  selection  for grades  0-6 
and below . . . 
Senate Armed Services Committee, 102d Cong.  1st 
Sess.  T h e   Conduct of Proceedings  €or  the  Selection  of  O f f i c e r s  
for Promotion in The  U.S. A i r  F o r c e ,   S.Rep. NO. 102-54, p.15. 
Applicant  also  contends  that  the  failure  of  the  Air  Force  to 
implement  for  field  grade  promotion  boards  DOD  Directives 
regarding  the  role  of  the  board  president  until  1992  "had  a 
deleterious affect  (sic) on the promotion boards which considered 
me  for lieutenant colonel."  This is clearly erroneous; the Air 
Force  was  in  compliance with  the  referenced  DOD  requirements. 
Nor  can the applicant show how the  failure of  the Air  Force to 
revise  its  regulation  until  1992  might  have  specifically 
prejudiced  him.  The  applicant  has  offered  no  proof  that  the 
presidents  of  any  Air  Force  selection boards  acted  contrary to 
law or  regulation.  In fact, none of  the duties prescribed  for 
board presidents in the Air Force system involve any actions that 
would  improperly  constrain  the  board  as  suggested  by  the 
applicant. 

\ 

As to his next argument regarding reliance by the selection board 
on  a  computer  "Tilt"  model  (the POM),  applicant  has  offered 
absolutely  no  evidence  to  support  his  theory,  nor  has  he 
established  any  evidence  of  any  wrongdoing  by  anyone,  and  he 
certainly  has  made  no  showing  of  how  he  might  have  personally 
been  prejudiced  by  the  alleged  conduct.  AFMPC  has  previously 
acknowledged  that  computerized products  were  sometimes used  in 
the past  as a management  tool  to assist  the board  president  in 
performing  his  responsibility  to  insure  consistency  in  scoring 
among  panels. 
The  decision  to  recommend  or  not  recommend 
individuals  for promotion, however, has  always been  one  of  the 
promotion board  members;  such decisions were  never  subordinated 
to a computer model. 

In  JA's  opinion,  applicant's  argument  that  the  Air  Force  , 
promotion  board  was  illegal  because  the  Air  Force  convened  a 
single board  consisting of panels rather than convening separate 
boards as required by the DOD Directive 1320.9 (later replaced by 
1320.12)  is  without  merit.  It  is  clear  that  the  directive's 
purpose  in  requiring  separate  boards  for  each  competitive 
category  is  to  insure  that  these  officers  compete  only  against 
others  in  the  same  competitive category-to  assure  fairness  and 
compliance  with  Title  10, Chapter  36  (particularly Section  621 
requirements).  In  truth, nomenclature notwithstanding, the  Air 
Force's  competitive  category  panels,  which  are  convened 
concurrently as permitted by the Directive, fully accomplish this 
stated  purpose;  i.e.,  members  of  each  competitive  category 

16 

93-0 1359 

compete within their respective panel only against other officers 
of that same category.  Thus, as a  practical matter, the panels 
operate  as  separate boards  for  purposes  of  the  DOD  Directive. 
More  importantly, they  f u l f i l l   a l l   the  requisite  statutory  and 
regulatory requirements. 

Noting  applicant's  claims  that  his  nonselection -  cannot  be 
remedied  by  special  selection  board  (SSB)  consideration,  JA 
stated the Air  Force's  SSB procedure  fully comports with  the 10 
USC  628 (a) (2) requirement that an officer's  "record be  compared 
with  a  sampling  of  the  records  of  those  officers  of  the  same 
competitive  category  who  were  recommended  Eor  promotion,  and 
those  officers  who  were  not  recommended  for  promotion,  by  the 
board  that  should  have  considered  him."  The  burden  is  on  the 
applicant to prove otherwise, and he has failed to do so. 
As  to  the  request  for  direct  promotion,  both  Congress  and  DOD 
have  made  clear  their  intent  that  errors  ultimately  affecting 
promotion should be resolved through the use of special selection 
boards.  (See 10 USC 628 (b) and DOD Directive 1320.11, para D.I.) 
Air Force policy mirrors that  (AFR 36-89, para 33a). 

The complete evaluation is at Exhibit G. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Counsel  took  exception  to  comments  contained  in  the  AFMPC/JA 
advisory and provided  comments addressing what he  believes were 
unwarranted and inappropriate comments. 

Counsel's  13-page response, with attachment, is at Exhibit I. 

In  his  response,  applicant  provided  comments  addressing  the 
timeliness of his appeal and  requested that  the AFBCMR  consider 
his case based on merits  and not reject the petition based upon 
the faulty advise of AFMPC/JA. 

As stated in his initial petition and rebuttal, he had over 2,000 
flying hours which were  never  reflected on his brief  or  at  the 
MLEB  (at MLEBs  before  1992,  TAC  illegally  provided  MLEBs  with 
flying hours) which was not  reflected in his  record.  The AFMPC 
opinions contain no further comments on this issue. 

In the summary section of his response, applicant asks the Board 
to consider the evidence presented in his position.  He believes 
the  evidence  proves  the  contested  OER  was  prepared  in  direct 
violation of AFR  36-10.  Specifically, the  indorsement level of 
the  report  was  limited  by  an  illegal  indorsement  quota.  The 
basis for determining the level of indorsement on this report was 
illegal  consideration of  promotion  eligibility, and  the  agency 
head,  AF/XO,  was  denied  the  opportunity  to  even  review  this 
The  evidence  proves  this 
report  as  required  by  regulation. 

17 

93-0 1359 

b 

tainted report later flawed his record of performance used in the 
promotion  recommendation  process  and  later  at  the  central 
promotion board.  To correct this error completely, he requests 
that the board upgrade the  indorsement level of  this report to 
reflect AF/XO  indorsement -  the indorsement level recommended by 
his rater and additional rater and only denied illegally by his 
director,  Major  General  W- - - I  whose  indorsement  decision  was 
clearly based upon considerations prohibited by AFR  36-10. 
The evidence also proves both the management boards and central 
promotion boards which considered his file were in violation of 
statute  and  directive.  As  a  result  of  these  errors, he  was 
systematically denied  the  due  process  requieed  by  statute  and 
directive.  These violations of law and directive  (coupled with 
unjust procedures used  within  the  SSB  process  itself) preclude 
any  relook  board  from  providing  him  full  and  fitting  relief. 
Therefore, he asks the board  to grant a full measure of  relief 
and  correct  his  record  to  reflect  selection  for  lieutenant 
colonel  as  if  selected  in  the  promotion  zone  by  the  CY89 
lieutenant colonel  board,  to  include  restoration of  all  rank, 
benefits, entitlements, and other relief appropriate to provide 
him full and fitting relief consistent with law. 

Applicant's  19-page response, with attachments, is at Exhibit J. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The application was timely filed. 
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
reviewing the evidence of record, we  are not persuaded that  the 
contested  OER  and  PRF  were  rendered  in  error  or  are  unjust. 
Applicant's contentions are duly noted; however, in our opinion, 
the  detailed  comments  provided  by  the  appropriate  Air  Force 
offices more  than adequately address these issues.  We  find the 
applicant's  assertions,  in  and  by  themselves,  are  not 
sufficiently persuasive to override the rationale provided by the 
Air  Force.  Therefore, we  agree with  the  recommendation of  the 
Air Force and adopt the rationale expressed as the basis f o r   our 
conclusion that  the  applicant  failed  to  sustain his  burden  of 
establishing the existence of either an error or injustice.  In 
view  of  the  above  findings, we  find  no  basis  upon  which  to 
recommend favorable consideration of his requests. 

18 

93-0 1359 

4.  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  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice; that  the  application  was  denied  without  a personal 
appearance; and  that  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 this application in 
Executive Session on  15 December 1997,  under the provisions  of 
AFI 36-2603: 

Mr. Charles E. Bennett, Panel Chair 
Mr. John L. Robuck, Member 
Mr. Gregory H. Petkoff , Member 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 16 Oct 92. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 

Applicant's Master Personnel Records. 
Letter, AFMPC/DPMAJA, dated 30 Apr 93. 
Letter, AFBCMR, dated 27 May 93. 
Applicant's Response, dated 12 Sep 93, w/atchs. 

%HARLES 

E. BENNETT 

Panel Chair 

19