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E B 0 9
AIR FORCE B0,ARD FOR CORRECTION OF MILITARY Rl$CORDS
RECORD OF PROCEEDINGS
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IN THE MATTER OF:
DOCKET NUMBER: 94-02521 (Case 2)
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COUNSEL: NONE
HEARING DESIRED: YES
,APPLICANT REQUESTS THAT:
1. The Promotion Recommendation Forms (PRFs) he received for
the Calendar Years (CYs) 1992 and 1993 Central Major Selection
Boards be declared void and removed from his records.
2. The promotion nonselections to-the grade of major by the
CY92 and CY93 Major Selection Boards be set aside.
3 . He receive a direct promotion to the grade of major by the
CY92C Major Selection Board, with back pay, allowances and
entitlements.
APPLICANT CONTENDS THAT:
The Air Combat Command (ACC) and Air Force Materiel Command
(AFMC) Management Level Evaluation Boards (MLEB) for the CY92 and
CY93 Major Central Selection Boards awarded an illegal rating
called "Top Promote ." This illegal, secret, system was operated
in violation of law. As such, he was not only denied knowledge
of this 'secret' process when he was considered, but he was also
denied the ability to compete within the process. The result of
such an arbitrary and capricious system was a defective record
which precluded him from competing in a 'fair and equitable
process' as guaranteed by AFR 36-89.
The Promotion Recommendation (PRF) process is contrary to
statute .
The promotion recommendation process essentially
eliminates any opportunity to appeal an inaccurate or unjust PRF.
In 1993, he was considered for promotion to major by a Special
Selection Board (SSB) for the CY92C Major Board. This board was
held contrary to statute since there were only four voting
members from the Active Duty List (ADL).
The board(s) that considered his record used a computer model
called the "Projected Order of Merit" (POM). This was a "secret
system" not known by the board members, but only known by the
board president and support staff.
The use of illegal
mini-boards substantially violated his rights for fair
consideration.
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The promotion selection boards are in violation of statute and
Department of Defense (DoD) Directives.
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The evidence proves significant legal errors occurred at the
central selection boards which considered his file for promotion.
The only opinion he has seen which discusses board procedures
(AF/JAG opinion-Atch 2) is clearly directed at use of the "panel
system"; however, even this opinion is based upon clearly flawed *
assumptions. Therefore, this document can serve as no basis for
Air Force to justify their illegal actions as the evidence
clearly proves each assumption is wrong! In addition to the
-defective record which led to his nonselection, the evidence also
proves the central selection boards themselves were illegal and
in direct violation of statute and directive.
A Special Selection Board (SSB) cannot resolve his promotion
nonselection on a "fair and equitable basis ." His flawed record
of performance had a direct impact on the senior rater's
assessment of his "performance based potential ." This process
cannot be "recreated" and even amendment of his PRF to
communicate a "solid promote recommendation'' would be flawed as
records within various commands were identified as among the "top
PRFs" in these commands. Therefore, he asks that the AFBCMR
correct his record to reflect selection for major at the CY92C
Major Board or at a minimum setting aside his nonselections for
major to allow him to qualify for the Special Separation
Bonus/Voluntary Separation Incentive (SSB/VSI).
In support of his request, applicant submits a 22-page statement,
with attachments.
Applicant's complete submission is appended at Exhibit A.
STATEMENT OF FACTS:
On 16 May 1981, the applicant was appointed a second lieutenant,
Reserve of the Air Force, and was voluntarily ordered to extended
active duty on 23 August 1981.
He was integrated into the
Regular Air Force on 10 November 1987 and was progressively
promoted to the grade of captain, effective and with a date of
rank of 23 August 1985.
Applicant's OPR profile, commencing with the report closing
14 May 1992, follows:
Period Endina
# 14 May 92
20 Dec 92
# # 31 Aug 93
Evaluation
Meets Standards
Meets Standards
Meets Standards
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C
# Top report at the time he was considered and nonselected for
promotion to major by the CY92C Central Major Board (P0492C),
which convened on 7 December 1992. The applicant received a
"Promote" recommendation on his Promotion Recommendation Form
(PRF) for the CY92C Central Major Board.
## Top report at the time he was considered and nonselected for
promotion to major by the CY93B Central Major Board (P0493B)'
.'which convened on 6 December 1993. The applicant received a '
"Promote" recommendation on his PRF for the CY93B Central Major
.Board .
- r - Information maintained in the Personnel Data System (PDS) reveals
that the applicant had an established date of separation (DOS) of
31 August 1994.
AIR STAFF EVALUATION:
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The Evaluation Boards Branch, AFMPC/DPMAEB, reviewed this
application and recommended denial.
DPMAEB stated that the
applicant alleges the Air Combat Command (ACC) and Air Force
Materiel Command (AFMC) Management Level Evaluation Board (MLEB)
for the CY92 and CY93 Major Central Selection Boards awarded an
illegal rating called "Top Promote." There is no such rating
system. However, in an effort to discriminate among officers who
receive "Promote" recommendations, some senior raters employ a
technique not addressed in AFR 36-10 in which they use comments
such as "my top promote," and "if I had one more 'Definitely
Promote' he'd get it," and other comments intended to convey to
the central selection board how they rank-ordered their officers.
Some senior raters will include comments that indicate how well
an officer ranked at an MLEB carry-over competition if that
officer was considered but did not receive a "DP" recommendation
from the MLEB. The applicant contends that because officers who
receive "DP" recommendations by senior raters or MLEBs are
promoted near 100% of the time, then the process is illegal
because the promotion selection board is not making the decision.
Promotion recommendations are clear signals to the promotion
selection board about the officers' duty performance, and how
these officers compare to their peers within a clearly defined
organization. The data shows that the officers with the best
duty performance are receiving the top "DP" recommendations and
the central selection boards are confirming the senior raters'
assessments by promoting these officers based on their entire
selection record. If the promotion recommendation system is
working correctly, the officers who receive "DP" recommendations
should be promoted at a rate near 100%. The applicant has not
provided any evidence that he was treated unfairly by the officer
evaluation system (Exhibit C).
The Selection Board Secretariat, AFMPC/DPMAB, stated that the
applicant's claims his Special Selection Board (SSB) was contrary
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to statute since there were only four voting members from the
Active Duty List (ADL). This is incorrect. The statute does not
address the issue of voting/nonvoting members. The statute does
require a selection board to consist of five or more officers who
The composition of the SSB that considered the
are on the ADL.
applicant was in compliance with the statute. DPMAB does not
agree with the applicant's opinions and interpretations of
statutes and fails to see where the applicant has proven his
promotion boards were "defective . "
The applicant challenges
long-standing board procedures and the certification of board
results by the board members. Both the board procedures and the
certification issue were reviewed as late as February 1992 by
="USAF/JAG and were found to be in compliance with applicable
statutes . The applicant quotes from DODD 1320.12 that "Separate
selection boards shall be convened for each competitive category
and grade." However, he fails to quote from other portions of
DODD 1320 . 12 that state:
"Selection boards convened for
different competitive categories OT grades may be convened
concurrently." and "When more than one selection board is
convened to recommend officers in different competitive
categories or grades for promotion, the written reports of the
selection boards ... may be consolidated into a single package for
submission to the Secretary of the Defense." The applicant
claims that the board@) that considered his record used a
computer model called the Project Order of Merit (POM) . This is
incorrect, no such computer model existed at that time.
Applicant also faults the Selection Board scoring process and
cites a SASC report stating "Such manipulated rescoring
undermines the integrity of the promotion process because it
provides discretion for the board's results to be altered to the
advantage of a particular officer not initially selected and to
the disadvantage of an officer initially selected." Applicant
left out the next section of SASC report, which states: "The OSD
did not find similar systematic problems with respect to
selection for grades 0-6 and below." As to the Below-the-
Promotion Zone (BPZ), all board members scoring the same
competitive category are involved in the BPZ process.
In
summary, the applicant offers no supportable evidence that the
promotion boards in question were in violation of statute,
directive or policy. DPMAB recommended the application be denied
(Exhibit D) .
The Appeals and SSB Branch, AFMPC/DPMAJ, stated that the
application was not processed under AFI 36-2401, Correcting
Officer and Enlisted Evaluation Reports, because the applicant
did not provide supporting statements from the senior rater who
signed his PRFs or from the president of the MLEB who reviewed
the PRFs. While the applicant speculates his record was at a
disadvantage based on the events depicted, it should be noted
that central boards evaluate the entire record to assess whole
person factors such as job performance, professional qualities,
depth and breadth of experience, leadership and academic and
Professional Military Education (PME). DPMAJ concurred with the
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advisory opinions from DPMAB and DPMAEB and recommended denial
(Exhibit E).
Pursuant to the Board's request, the Staff Judge Advocate, HQ
AFMPC/JA, addressed the allegations regarding illegal and secret
MAJCOM promotion recommendation procedures; the violation of
statute, DOD directive and Air Force regulation; and the illegal
composition of central and special selection boards.
The Staff Judge Advocate, AFMPC/JA, reviewed this application and
recommended denial. In JAIs view, the applicant has failed to
present relevant evidence of any error or injustice warranting
-relief.
In JA's opinion, the governing regulation does not
prohibit the promotion recommendation process used by the Air
Combat Command (ACC). JA indicated that while that process is
not specifically authorized per se, the regulation does require
in narrative form an assessment of the ratee's performance based
potential to support the overall promotion recommendation. In
the opinion of both the OPR and JA, delineating among "promotes"
to describe a particular officer' s relative potential meets the
standards of this provision and violates neither the letter nor
spirit of any portion of the regulation. JA stated that there is
no requirement that commands using such a system supplement the
It is JA's opinion that the stratified promote
regulation.
system used by ACC does not constitute a "change to basic policy"
- for which a supplement would be prohibited. JA noted that
AF/CC,S recent officer evaluation/promotion system review
concluded that such MAJCOM stratified systems should be
eliminated-but not because they were illegal; rather, it was
determined that they created unnecessary perceived fairness
problems.
As to the alleged improprieties with the CY93 PRF applicant
received from Space and Missile Center (SMC) and Air Force
Materiel Command (AFMC), JA indicated that while not ruling out
the possibility that improper procedures might have been
employed, the evidence in this file is insufficient to establish
it.
JA stated that the governing 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. 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
exi s t ed . "
JA indicated that 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 make such a
comparison. JA disagrees with the applicant, however, that this
fact renders a meaningful comparison impossible. In JA' s view,
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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 compare an applicant's record
against the general standard by which records of performance in
that particular organization at that time would have qualified
for an upwardly revised recommendation.
JA indicated that the applicant is confused and incorrect as to
.his conclusions that the AFR 31-11 requirement exceeds the 4
standard of proof required by 10 U.S.C. 1552 and is illegal.
With regards to applicant's claims that the PRF process is
-contrary to statute because the Management Level Evaluation Board
(MLEB) acts as a de facto promotion board, JA indicated that the
very high rates of selection for promotion of officers with DP
recommendations was fully expected and consistent with the aims
of the officer evaluation program. JA stated that the officer
evaluation system is just that - a system of evaluation and not
one of ultimate selection for promotion. JA indicated that a
"definitely promote" is not required for a promotion; there is
always a significantly higher opportunity for promotion to every
grade than the percentage of officers who can receive a DP
recommendation. Substantial numbers of officers with "promote"
recommendations have been selected for promotion. JA stated that
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.
JA stated that differentiating among promotion candidates is
traditional and has always been legal. The PRF process is merely
the latest in a line of procedures used by the Air Force to
assist promotion boards in identifying the best qualified
officers for promotion.
Contrary to the applicant's
implications, JA indicated that 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.
With regards to the applicant' s assertions that promotion
selection boards are contrary to Air Force regulation, DOD
Directives and statutes (10 U.S.C. 616, 617)' JA stated that
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.
JA
indicated it is clear that at the time the Defense Officer
Personnel Management Act (DOPMA) was enacted, Congress was aware
of the existence of promotion board panels and expressed no
problem with them. JA agrees that the Air Force methodology
differs from the other services and might seem unorthodox, being
different and unique does not make it illegal. JA indicated that
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the bottom line is that it does meet the statutory mandates and
the applciant has failed to prove otherwise.
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 is without merit. JA
.stated that it is clear the directive's purpose in requiring
:separate boards for each competitive category is to ensure that
these officers compete only against others in the same
competitive category - to assure fairness and compliance with
Title 10, Chapter 36.
. J
JA stated that the applicant has offered no proof that the
presidents of any Air Force selection boards acted contrary to
law or regulation.
As to the applicant's claim that A i s nonselection cannot be
remedied by SSB consideration, it is JA's opinion that the Air
Force's 3SB procedure fully comports with the 10 U.S.C. 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 for promotion, and those officers who were
not recommended for promotion, by the board that should have
JA indicated that the burden is on the
considered him. ' I
applicant to prove otherwise, and he has failed to do so.
JA indicated that the applicant's contention that too few active
duty list (ADL) members were assigned to his SSB is incorrect.
Five of the six members of the board were on ADL; the fact that
one was the board president does not constitute a violation of 10
U.S.C. 612 or any other statute or regulation.
As to applicant's request for direct promotion, JA stated that
both Congress and DOD have made clear their intent that errors
ultimately affecting promotion should be resolved through the use
of special selection boards. JA agrees with AF/JAG that the
Board is not in the appropriate position to grant a direct
promotion-that in promotion matters, the Board' s statutory
authority should be limited to correcting military records which
may have affected the promotion process, and recommending SSB
consideration in appropriate cases.
JA indicated that the
applicant competed at the CY92 and CY93 promotion boards with a
"promote" recommendation and if his record were truly that
deserving, he could have-and would have-been selected for
promotion.
A complete copy of the JA evaluation i s appended at Exhibit F.
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APPLICANT'S REVIEW OF AIR STAFF EVALUATION:
The applicant reviewed the advisory opinions from AFMPC/DPMAEB,
AFMPC/DPMAB, and AFMPC/DPMAJ, and submitted additional documents
entitled "Evidentiary Support: Illegal Selection Boards and
Irrelevant AF/JAG Opinion" (Appendix A) , and "Evidentiary
Support : Illegally Consolidated Selection Boards" (Appendix B) .
The applicant indicated that the evidence in the form of
documents created by the Air Force themselves clearly proves the
Air Force selection boards violate 10 USC, Sections 616, 617
provisions; the findings of the 22 Feb 92 AF/JAG opinion are n o t
relevant to the grounds for relief presented in his
-petition/rebuttal. Therefore, he asks the Board to set aside the
action by the illegal board.
The applicant reviewed the advisory opinion from AFMPC/JA and
indicated that the evidence proves, beyond any doubt not only the
general illegality of the top promote system, but more
specifically, the unequivocal illegality of the top promote
system within AFMC. As it is impossible to receive fair and
equitable consideration via an SSB, both due to the illegal
operations of various MAJCOM MLEBs as well as a PRF correction
process tainted by illegally gained information, he requests that
the Board correct his PRFs to reflect a "Definitely Promote"
recommendation. He further concludes that Air Force selection
boards violate the requirements of 10 USC, Section 616 and 617.
The Air Force is required to follow the law, directives, and
regulations, and failure to do so is fatal to the deviant action.
Therefore, nonselections incurred at illegal selection boards are
without effect and must be set aside. AFMPC/JA does not dispute
any of his comments concerning board operations. AFMPC/JA avoids
discussion of the requirements of statute. The evidence is clear
that the results of the boards that considered his file for
promotion did not meet the minimum requirements of law and
violated DoD Directive. In fact, the certification process used
by Air Force selection boards is nothing more than an attendance
roster! While AFMPC/JA claimed "none of the duties prescribed
for board presidents" violated DoDD 1320.12, they declined
discussion of the issues and provided no evidence to support
their view. Therefore, he concludes that the evidence proves
direct promotion is within the AFBCMR's authority and that SSBs
cannot provide a full let alone fitting measure of relief.
Therefore, he requests the Board direct his record be corrected
to reflect selection for promotion to major as if selected by the
CY92 Major Board.
Applicant's response to the evaluations is appended at Exhibit H.
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.
If
provided by existing
THE BOARD CONCLUDES THAT:
1 The applicant has exhausted all remedies
law or regulations.
2. The application was timely filed.
-3. Insufficient relevant evidence has
been presented to
Ziemonstrate the existence of probable error or injustice. We '
find insufficient evidence to support applicant's request to void
the Promotion Recommendation Forms (PRFs) for the Calendar Years
(CYs) 1992 and 1993 Major Boards or to upgrade the PRFs to a
'*'"Definitely Promote .
Applicant has failed to provide sufficient
evidence showing that the recommendations he received were in
error or unjust. Noticeably absent are statements of support
from the senior raters of the PRFs in question and the presidents
of the MLEBs or evidence showing that those individuals did not
have access to adequate informatien on which to base their
decisions concerning the award of a proper promotion
recommendations when comparing the applicant's record of
performance with those of his peers. In the absence of such
evidence, we find no basis upon which to conclude that the
promotion recommendations he received were inaccurate. As to
applicant's contentions concerning the statutory compliance of
central selection boards, the legality of the promotion
recommendation process, and the legality of the SSB process, in
our opinion, have no merit. The detailed comments provided by
the appropriate offices adequately address these issues. In view
of the above findings, we are in complete agreement with the
comments and recommendations made by the appropriate Air Force
offices and adopt the rationale expressed as the basis for our
decision that the applicant has failed to sustain his burden of
establishing that he has suffered either an error or an
injustice.
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 n o t
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 n o t
considered with this application.
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94-02521
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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 Chairman
Mr. Gregory H. Petkoff, Member
Mr. John L. Robuck, Member
.,The following documentary evidence was considered:
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Exhibit A.
Exhibit B.
Exhibit C.
Exhibit D.
Exhibit E .
Exhibit F.
Exhibit G.
Exhibit H.
DD Form 149, dated 3 1 May 94, w/atchs.
Applicant's Master Personnel Records.
Letter, AFMPC/DPMAEB, dated 27 Jun 94.
Letter, AFMPC/DPMAB, dated 1 Jul 94.
Letter, AFMPC/DPMAJ, dated 17 Aug 94.
Letter, AFMPC/JA, dated 1 6 May 95.
Letters, SAF/MIBR, dated 22 Aug 94 and 3 1 May 95.
Letter from applicant, dated 23 Sep 94, with
Appendix A and B, and letter from applicant,
dated 30 Jun 95, w/atchs.
-CHARLES
E. BENNETT
Panel Chairman
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The Air Force officer promotion boards which considered his records for promotion were held in violation of statute, DoD Directive and Air Force regulations. DPPPA indicated that if the Board should grant the applicant’s request to receive SSB consideration by the CY93A central selection board, with a corrected Apr 93 OPR and CY93A (P0593A) PRF, the “corrected by” annotations on those reports (and any other corrected documents in his OSR) will be removed. In this respect, we note the...
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JA stated that 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 It 8 AFBCMR 95-00486 4 board. 12 AFBCMR 95-00486 He stated that the Board can see the errors in the Air Force process are certainly 'directly related to the purpose and functioning of selection boards" - the failure to allow a majority of the members of the board to find each and all officer(s) recommended...
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Stratification among promotes by senior raters is allowed, for not every officer can be promoted with a “Promote.” The applicant contends that AFR 36-10 states there are only three PRF ratings: Definitely Promote, Promote, and Do Not Promote. In his most familiar attack on the Air Force promotion system, the author of the applicant’s letter contends that Air Force promotion boards violate 10 U.S.C. In response, they note first that no provision of law exists that specifically requires each...
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According to DPPPEB, there was no evidence presented to support the allegations of "illegal" information being considered in the PRF process. Also, there was no official evidence presented to support allegations of '\special" promote recommendations being used to identify officers who should be selected for promotion by the Central Selection Board. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In his response, the applicant indicated that the evidence proves that his PRF was based on an...
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As for the merits of these claims, in JA’s opinion, 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 for 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. AFPC has provided...