AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
IN THE MATTER OF:
DOCKET NUMBER: 94-04571
'7" - -
COUNSEL: Controlled Equity, INC.
HEARING DESIRED: Yes
Nov 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.
He receive back pay and other entitlements as appropriate for
3 .
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 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
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 "Documentation of Dishonesty, Deceit and
Deception.
Applicant's complete submission, with attachment, is attached at
Exhibit A.
-:
- .
Applicant entered the United States Air Force Academy (USAFA) on
28 June 1965 and was released from USAFA on 11 June 1967. He
enlisted in the Reserve of the Air Force on 12 June 1967 and was
honorably discharged on 26 December 1967 for the purpose of
enlisting in the Regular Air Force on 27 December 1967.
On
29 November 1972, he was honorably discharged for the purpose of
accepting a commission.
Applicant was commissioned a second lieutenant on 30 November
1972 and entered extended active duty. He was promoted to the
grade of permanent captain effective 30 November 1976.
Applicant was considered and not selected for promotion to the
grade of major by the Calendar Years 1983 and 1984 (CY83/84)
Central Major Selection Boards.
OER/OPR profile since 1975 follows:
5 JUN 75
29 FEB 76
13 FEB 77
4 AUG 77
10 OCT 78
10 OCT 79
2 MAY 80
1 FEB 81
1 JUN 81
11 JAN 82
11 JAN 83
11 JAN 84
1 JAN 85
Abbreviated Report
3-3-3
3-3-3
3-3-3
2-2-2
1-1-1
2-2-2
2-2-2
1-1-1
2-2-2
1-2-2
1-1-1
1-1-1
On 31 January 1985, he was released from active duty and
transferred to the Reserve of the Air Force. On 28 July 1985, he
was honorably discharged from the reserves and enlisted in the
Regular Air Force.
On 30 June 1988, applicant was relieved from active duty, in the
grade of staff sergeant and retired in the grade of captain on
1 July 1988 for length of service from active duty in the grade
of captain. He served a total of 20 years and 6 days of active
service.
2
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 th-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
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
3
I
'
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 complk- 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
DODD 1320.09 stated: IISelection boards convened for different
competitive categories or grades may be convened concurrently,Il
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 eliminated from undergraduate pilot
training and he became a navigator. His first OER, June 1975,
was marked three across with front side markdowns (FSMDs). The
February 1976 report was marked the same way. The February 1977
report was an abbreviated report with FSMDs. The August 1977 had
threes straight across with FSMDs. The reports for October 1978,
May 1980, February 1981, and January 1982 had twos straight
across with FSMDs. On the January 1983 report, he received a one
from the rater and twos from the additional rater and reviewer
with FSMDs. Applicant was never augmented into the Regular Air
Force. The majority of applicant Is peers received llfirewallll
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 it appears there were no
injustices or irregularities that occurred with applicant's
4
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 cromplete copy of the evaluation is attached at Exhibit F.:>_. . .
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 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.
D
i, D
1. The application was not filed within three years after the
alleged error or injustice was discovered, or reasonably could
5
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-
yeax period for filing. Thus the application is untimely. : -
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.
-
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:
Exhibit A. DD Form 149, dated 8 Nov 94, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFMPC/DPMAJE, dated 13 Dec 94.
Exhibit D. Letter, AFMPC/DPMAB, dated 19 Dec 94.
Exhibit E. Letter, AFMPC/DPMAJA, dated 3 Jan 95.
Exhibit F. Letter, AFMPC/DPMARSP, dated 15 Feb 95.
Exhibit G. Letter, AFMPC/JA, dated 13 Apr 95.
6
Exhibit H. Letter, AFBCMR, dated 8 May 95.
Exhibit I. Counsel's response, 3 Jul 95.
WALTER A. WILLSON
Panel Chairman
7
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. 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...
The operation of the Air Force selection boards did no-t .comply with Sections 616 and 617. 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. The provisions of law and directive were violated by the Air Force selection board procedures used when applicant was considered for promotion.
The Air Force elected to retain the controlled system of reports in officer selection folders. 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. The provisions of law and directive were violated by the Air Force selection board procedures used when applicant was considered for promotion.
A complete copy of the evaluation is attached at Exhibit C. The Chief, Selection Board Secretariat, AFMPC/DPMAE3, reviewed the application regarding Defective Selection Boards and recommends denial. However, other portions of DODD 1320.09 stated: tlSelection boards convened for different competitive categories or grades may be convened concurrently,Il and When more than one selection board is convened to recommend officers in different competitive categories or grades...
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...
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. The provisions of law and directive were violated by the Air Force selection board procedures used when applicant was considered for promotion. Counsel's complete response is attached at Exhibit I.
There was no board in 1990. The provisions of law and directive were violated by the Air Force selection board procedures used when applicant was considered for promotion. Counsel's complete response is attached at Exhibit I.
His record be corrected to reflect continuous active service as a a captain from the date he was separated as a result of his nonselection to the grade of major. He served 15 years and 21 days of active duty and received $15,000.00' in severance pay. A complete copy of the evaluation is attached at Exhibit C. The Chief, Selection Board Secretariat, AFMPC/DPMAB, reviewed the application and recommends denial.
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...
AF | BCMR | CY1999 | BC-1995-00115
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...