AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 94-04427 

, -  

COUNSEL: Controlled Equity, INC. 

HEARING DESIRED: Yes 

. -  .  . 

wv  0 2  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. 

The  Air  Force  knew  that  a  system  of  controlled  ratinqs  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 
not  comply with  Sections  616 and  617.  Based  on these  illegal 
actions,  he  requests  that  his  promotion  nonselections  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 petition. 

In support of the appeal, counsel submits a five page brief, with 
one attachment entitled  I'Documentation of Dishonesty, Deceit and 
Deception. 'I 

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

-: 

Applicant  was  commissioned a  second  lieutenant, Reserve of  the 
Air Force on 1 August  1958.  He entered extended active duty on 
1 December  1958.  He was  appointed a  first  lieutenant, Regular 
Air  Force on 25 April  1962  .  He was promoted  to the grade of 
permanent major effective 1 December 1972. 
Applicant  was  considered and not  selected for promotion to  the 
temporary grade of  lieutenant colonel by the Fiscal Years 1976, 
1977  and  Calendar  Years  1976,  1977,  and  1978  (CY76/77/78) 
Temporary  Lieutenant  Colonel  Selection  Boards.  Applicant  was 
also considered and not  selected for promotion to the permanent 
grade  of  lieutenant  colonel  by  the  CY78  and  CY  79  Permanent 
Lieutenant Colonel Boards. 

OER/OPR profile since 1972 follows: 

c 

1 JUL 72 
1 JUL 73 
31 MAY 74 
15 OCT 74 
30 JUN  75 
29 APR 76 
31 DEC 76 
24 JUL 77 
31 DEC 77 
23 JUL 78 

9-4 
8-3 
9-4 
9-4 
9-4 

Abbreviated Report 
Abbreviated Report 

1-1-3 

1-2-3 

Abbreviated Report 

On  30  Ji ne  1979,  applicant 
retired in the grade of major 
and 7 months of active duty. 

Jas  relieved  from  active  dity  and 
on 1 July 1979.  He served 20 years 

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, 

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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 
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 kcorpsl 
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 
coqducting  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 claims 
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 

3 

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 
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 rated under the two previous systems 
which  preceded  the  controlled  system. 
His  early  promotion 
potential  rating  was  very  fine  officer  of  great  value  to  the 
service. 
His  later  ratings  ranged  from  performing  well  in 
present  grade  to  demonstrates  capabilities  for  increased 
responsibility, consider for advancement ahead of contemporaries, 
to outstanding potential.  Most  of these reports had  front side 
mark  downs  (FSMDs).  His  first  controlled  report was  in April 
1976  and it was an abbreviated report with  FSMDs.  He received 
ones from the  rater and additional rater on the December 1976, 
the reviewer marked  three with  FSMDs.  The July 197 report was 
abbreviated with FSMDs.  He received a one from the rater, a two 
from the additional rater and a  three  from the  reviewer on the 
December 1977 report which also had FSMDs.  Lastly, the July 1987 
report was  an  abbreviated report with  FSMDs.  The  majority  of 
applicant ' s   peers  received  I1firewall1' 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 O E R s   in his records. 
Applicant  has  not  established  the  controlled  OER  system  was 
illegal or that  the controlled O E R s   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 it appears 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 retirement.  They nonconcur with 
the  request  for  continuous  service  credit. 
There  are  no 
provisions or  justifiable reasons to  continue to  award  service 
credit  for  unearned  service  past  retirement  eligibility. 
Therefore, they recommend denial. 

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

4 

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 warr:anting 
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  fair 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. 

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. 

L 

5 

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 
thaL the record raises issues of error or injustice which reguire 
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. 

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 

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

documentary evidence was considered: 
DD Form 149, dated 28 Oct 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  Jul 95. 

t 

2?L%iiL.;lt/-&- 
WALTER A. WILLSON 
Panel Chairman