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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 94-03906 

HEARING DESIRED: Yes 

NOV  0 6  1995 

1.  Set aside all non-selections for promotion that he received. 
2.  His record be corrected to reflect continuous active service 
until the first day of the month following the Board's decision. 
3 .   He receive back pay and other entitlements as appropriate for 
the period he was not on active duty until reinstatement. 
4. His  record  be  corrected  to  reflect  the  award  and/or 
adjustment of  his  retirement pay  as appropriate to reflect the 
additional continuous active service. 

DS THAT: 

The  Air  Force  knew  that  a  system  of  controlled  ratings  was 
operating illegally and  inequitably.  The Air  Force elected  to 
retain  the  controlled  system  of  reports  in  officer  selection 
folders.  Concurrently, board  members  were  provided  erroneous 
information  that  concealed  and  exacerbated  the  illegal  and 
inequitable  competitive  impact  of  the  controlled  system  of 
reports.  This resulted in violation of his legal and statutory 
entitlement to fair and equitable promotion consideration.  The 
boards  that  considered him  for promotion were  held  contrary to 
statute, directive, and  regulation.  The  Department of  Defense 
(DoD)  directive  requirement  for  separate  boards  for  each 
competitive  category  was  not  granted.  10  United  States  Code 
(USC) Sections 616 and 617 require the majority of board members 
to recommend and certify both, the officer and the officers best 
qualified.  The operation of the Air Force selection boards did 
no-t .comply with  Sections 616 and  617.  Based  on  these  illegal 
actions, he requests that his promotion nonselection be set aside 
and  correction of  his  record to  reflect  continuous active duty 
until the first day of the month  following the decision on this 
petit ion. 
In support of the appeal, counsel submits a five page brief, with 
one attachment entitled IIDocumentation of Dishonesty, Deceit and 
Deception. It 

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

Applicant  was  commissioned a second  lieutenant, Reserve  of  the 
Air Force on 1 February 1967 and entered extended active duty on 
8 March 1967.  He was promoted to the grade of temporary captain 
effective 8 March 1970. 
Applicant  was considered and not  selected for promotion  to the 
grade of major by  the Calendar Year 1978  (CY78) Temporary Major 
Board. 
OER/OPR profile since 1974 follows: 

8 DEC 74 
2 JUN 75 
7 DEC 75 
31 OCT 76 
30 APR 77 
31 OCT 77 
26 JUN 79 
26 JUN 80 

9-4 
9-4 

1-2-3 

Abbreviated Report 
Abbreviated Report 
AF Form 77 -  Not rated for 
the above period. 

1-1-2 

2-2-2 

On 1 November  1978,  applicant was released from active duty in 
the  grade  of  captain 
and  transferred  to  the  Air  Reserve 
Personnel Center  (ARPC) .  He  served 11 years, 7  months  and  24 
days of active duty. 

R STAFF EVALUATJON: 

The  Chief,  Officer  Evaluation  Programs  Branch,  AFMPC/DPMAJE, 
reviewed  the  application  and  states  that  the  controlled  OER 
system was not  illegal or unfair.. The  system was  designed  to 
differentiate  and  identify  the  best  qualified  officers  for 
promotion in a competitive system and it did.  Regarding the link 
between  time-in-grade  (TIG) and  ratings, management  understood 
that as officers approach promotion eligibility for each grade, 
the percent of top block ratings usually increase.  Today, as it 
was  16 years ago, it is reasonable to expect that more  senior, 
experienced,  and  mature  officers  in  competition  with  less 
experienced contemporaries would receive a higher percentage of 
top block ratings.  The ratings awarded to an officer is far more 
likely  a  function  of  actual  performance  rather  than  the  TIG 

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3  perception.  However, perceptions of  the  latter spread quickly 
and ultimately could not be ignored.  Air Force senior leadership 
addressed  these  perceptions  because  it  became  evident  the 
controlled OER  system  negatively  influenced  the  officer  corps' 
morale and motivation.  The controlled rating concept met most of 
its intended goals.  As with any evaluation system used by  any 
large organization, regardless of  how  effective  the  system may 
work, concern for morale will ultimately cause the organization 
to  reassess  such a  system  periodically  to  ensure  the  benefits 
don't outweigh the costs.  The Air Force concluded that a change 
was desirable and in 1978, the Chief of Staff agreed to terminate 
the rating control limitations.  However, these changes were not 
made  because  the  system operated illegally or  treated officers 
unjustly.  Applicant presents no conclusive evidence to support 
his allegations of unfair treatment and the case should be denied 
because of the elapsed time between this appeal and the alleged 
wrong, and  secondly, because  applicant has  failed  to prove  the 
existence of any error or injustice. 

A complete copy of the evaluation is attached at Exhibit C. 

The Chief, Selection Board Secretariat, AFMPC/DPMAB, reviewed the 
application regarding Defective Selection Boards and  recommends 
denial.  Although counsel challenges the operating procedures of 
promotion  boards  including  the  panel  concept  used  by  the  Air 
Force, the Air Force has used the panel concept for many years in 
conducting  selection boards  and  the  procedure  was  reviewed  as 
late as February 1992 by  HQ USAF/JAG and AFMPC/JA  in May  1994. 
The panel concept has safeguards to insure an equal distribution 
of the quality spectrum of records to each panel.  As each panel 
scores its records, an order of merit  (OOM)  is formed.  It is the 
board  president's responsibility to  review  the  OOMs  to  insure 
consistency of scoring on each panel and consistency of quality 
among  the  panels.  Without  exception,  the  quality  of  records 
always has been  identical at  the same percentage level on each 
OOM.  While  it  is  true  that  the  board  members  do  not  see  a 
complete select list, under the panel concept one panel does not 
have to know what the other panels have done.  The panel's task 
is to align their records in an OOM 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 known as the  "gray zone." 
In  resolving  gray  zone  ties,  the  panel  understands  that  all 
records scoring higher than the lowest select on its OOM  are also 
selects.  In the previously referenced February 1992 review, the 
USAF/JAG also reviewed  10 USC  Section 616(c) and  10 USC 617(a) 
and  determined  that  the  selection board  procedures  comply with 
the 'applicable provisions of statute and policy.  Counsel clafms 
the promotion boards were conducted in violation of Department of 
Defense Directive (DoDD) 1320.9 which required separate selection 
boards for each competitive category.  However, other portions of 
DODD  1320.09  stated:  "Selection boards  convened for different 
competitive categories or grades may  be  convened  concurrently," 
and When more than one selection board is convened to recommend 
officers  in  different  competitive  categories  or  grades  for 

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for 

ahead 

advancement 

4  promotion, the written reports of the promotion selection boards 
under 10 USC  617 may be  consolidated into a single package  for 
submission as prescribed under 10 USC 618." 
A complete copy of the evaluation is attached at Exhibit D. 
The  Chief, Appeals  and  SSB  Branch, AFMPC/DPMAJA,  reviewed  the 
application and recommends denial on the basis of timeliness; if 
considered,  deny  due  to  lack  of  merit. 
They  have  analyzed 
applicant's  record  and  his  record  speaks  for  itself. 
Specifically, applicant was initially rated using the system in 
effect prior to the 
system.  His promotion potential 
was generally rated as  "demonstrates capabilities for increased 
responsibility, 
of 
consider 
These  reports  had  front  side  mark  downs 
contemporaries. 
(FSMDs) . 
His  first  controlled  report,  December  1975,  was 
abbreviated.  His rater marked  the October 1976 report one, the 
additional  rater marked  it  a two and  the  reviewer marked  it  a 
three.  The April 1977 report was abbreviated with FSMDs.  On the 
October 1977  report, the  rater and  additional rater marked  one 
and  the  reviewer  marked  two  with  FSMDs..  As  a  non-extended 
active duty officer, he  received less than outstanding ratings. 
Applicant was never augmented  into the Regular Air  Force.  The 
majority  of  applicant I s   peers  received  "firewall'l reports with 
the front marked all the way to the right.  Also the controls on 
the rating were only on the final indorser.  It is doubtful that 
applicant would  have been promoted without  the  control OERs  in 
his  records.  Applicant  has not  established  the  controlled OER 
system  was  illegal  or  that  the  controlled  OERs  were  the  sole 
cause  of  his  non-selection  for  promotion.  Applicant  has  not 
established the promotion process is flawed, nor has he submitted 
evidence  to  substantiate  any  of  his  allegations, nor  has  he 
provided  any  statements from-  supervisors or other  officials  in 
the rating chain to support the ratings of record are in error. 
A complete copy of the evaluation is attached at Exhibit E. 
The Chief, Retirements and  Separations Division, AFMPC/DPMARSP, 
reviewed  the  application  and  states  that  applicant  was  only 
considered and nonselected by one promotion board.  Applicant did 
not  serve 20  years at  the time of  separation, therefore, he was 
ineligible  for  retirement. 
There  were  no  injustices  or 
irregularities  that  occurred with  applicant's nonselection  for 
promotion; there were no error or injustices in the processing of 
applicant's separation.  Although there was policy in effect at 
the -time of  applicant's  separation  to  involuntarily  separate 
Reserve captains after their first nonselection to major, there 
was a llliberalll extension policy if the officer applied to remain 
on  active  duty  for  a  second  consideration. 
There  is  no 
indication that applicant ever applied for this extension when he 
had the opportunity.  Therefore, they recommend denial. 

A complete copy of the evaluation is attached at Exhibit F. 

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9  The Staff Judge Advocate, AFMPC/JA, reviewed the application and 
recommends denial on the basis of  timeliness.  They state that 
applicant has failed to file within the allotted time period and 
has not  satisfactorily explained this failure.  It would not be 
in  the  interest of  justice to  excuse the  failure.  It  is also 
their  opinion  that  applicant,  on  the  merits,  has  failed  to 
present  relevant evidence of  any  error  or  injustice warranting 
relief. 

A complete copy of the evaluation is attached at Exhibit G. 

Counsel  reviewed  the  Air  Staff  evaluations and  reiterates  his 
position  that  applicant  was  the  victim  of  a  systemically 
inequitable  and  illegal  evaluation  system. 
The  error  was 
compounded  by  the  actions  and  inactions  of  officer  selection 
boards that violated applicant's legal and regulatory entitlement 
to  be  considered  for promotion  on a  fais and  equitable basis. 
Applicant was intentionally uninformed and misinformed concerning 
the  fairness  and  equity  of  the  controlled  system/selection 
boards.  Counsel  states  that  promotability  is  not  the  issue 
before the AFBCMR, rather it is the removal of the nonselections 
for promotion and the retirement/separation.  The provisions of 
law and directive were violated by the Air Force selection board 
procedures  used  when  applicant  was  considered  for  promotion. 
Applicant asks the Board to set aside the results of the tainted 
selection  boards. 
Applicant's  timely  and  legal  access  to 
information he was entitled to by  law was violated by  numerous 
Air Force acts of fraudulent concealment.  Fraudulent concealment 
circumvents an Air Force time bar defense. 
In support of applicant's request, counsel submits an eight page 
rebuttal with five attachments. 

Counsel's complete response is attached at Exhibit I. 

FINDINGS ANT) CONCLUSTONS OF D E  BO- 
1.  The  application was  not  filed within  three years after the 
alleged  error or  injustice was  discovered, or reasonably  could 
have  been  discovered,  as  required  by  Section  1552,  Title  10, 
United-  States Code  (10 USC 1552),  and Air Force Regulation 31'3. 
Although the applicant asserts a date of discovery which would, 
if  correct ,  make  the  application  timely,  the  essential  facts 
which gave rise to the application were known to applicant long 
before the asserted date of discovery.  Knowledge of those facts 
constituted the date of discovery and the beginning of the three- 
year period for filing.  Thus the application is untimely. 

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2.  Paragraph b of 10 USC 1552 permits us, in our discretion, to 
excuse  untimely  filing  in  the  interest  of  justice.  We  have 
carefully reviewed applicant's submission and the entire record, 
and  we  do  not  find  a  sufficient basis  to  excuse  the  untimely 
filing  of  this  application.  The  applicant  has  not  shown  a 
plausible reason for delay  in filing, and we  are not  persuaded 
that the record raises issues of error or injustice which require 
resolution on the merits at this time.  Accordingly, we conclude 
that  it would not  be  in the  interest of  justice  to  excuse  the 
untimely filing of the application. 
3.  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. 

DECISION OF T W  BOARD: 
The application was not timely filed and it would not be  in the 
interest  of  justice  to  waive  the  untimeliness. 
It  is  the 
decision of  the Board, therefore, to  reject  the  application as 
untimely. 

The following members of the Board considered this application in 
Executive Session on 18 September 1995 under provisions of  AFR 
31-3 : 

Mr. Walter A. Willson, Panel Chairman 
Mr. Gregory H. Petkoff, Member 
Ms. Martha Maust, Member 

The following documentary evidence was considered: 
DD Form 149, dated 4  Sep 94, w/atch. 
Applicant's Master Personnel Records. 
Letter, AFMPC/DPMAJE, dated 13 Dec 94. 
Letter, AFMPC/DPMAB, dated 19 Dec 94. 
Letter, AFMPC/DPMAJA, dated 3 Jan 95. 
Letter, AFMPC/DPMARSP, dated 15 Feb 95 
Letter, AFMPC/JA, dated 13 Apr 95. 
Letter, AFBCMR, dated 8 May 95. 
Counsel's response, 3 Ju1 95. 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F.. 
Exhibit G. 
__  Exhibit H. 
Exhibit I. 

WALTER A. WILLSON 
Panel Chairman 

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