5-  -- 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET I$UMBER: 94-04588 

COUNSEL: Controlled Equity, INC. 

HEARING DESIRED: Yes 

- .  . 

_i 

Nov  0 2  1995 

APPJlICANT RFOUESTS THAT: 
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. 

APPJIICANT CONTFNnS 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 
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 enlisted in the Regular Air Force on 19 June 1967:;_for.a 
period of  four years.  He reenlisted on 10 November  1969  for a 
period  of  six years.  On  14  September  1971,  he  was  honorably 
discharged in accordance with AFM 39-10, to accept a commission. 
Applicant  was  commissioned a  second lieutenant on  15  September 
1971 and entered extended active duty.  He was promoted to the 
grade of permanent captain effective 15 September 1976. 
Applicant  was  considered and not  selected for promotion to the 
grade  of  major  by  the  Calendar  Years  1982,  1983,  1984,  1985, 
19 8 6A, and 19 8 6B  (CY8 2 / 83 / 84 /8 5 /8 6A/8 6B )  Central Ma] or Select ion 
Boards. 
OER/OPR profile since 1974 

follows : 

24 MAY  74 
24 NOV 74 
31 AUG 75 
29 DEC 75 
31 OCT 76 
31 MAR  77 
9 JUL 78 
9 JUL 79 
9 JUL 80 
9 JUL 81 
31 JAN 82 
31 JAN 83 
30 JUN 83 
30 JUN 84 
30 JUN 85 
30 JUN 86 

Abbreviated Report 

Abbreviated Report 

8-3 
9-4 
2-3-3 

2-3-3 

2-x-2 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 

On  30  June  1987,  applicant  was  released  from  active  duty  and 
retired for length of  service in the grade of captain on 1 July 
1987.  He served a total of 20 years and 12 days of active duty. 

AIR ST AFF E VALUATION: 
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 

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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  tfie  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.  A s   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 

3 

the promotion boards were conducted in violation of Department of 
Defense Dire.ctive (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,11 
and "When more than one selection board is convened to recommend 
officers  in  different  competitive  categories  or  grades  for 
pramotion, 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. 

consider 

for 

ahead 

advancement 

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 before  the  "controlled1f system.  His promotion potential 
was generally rated as  "demonstrated capabilities for increased 
responsibility, 
of 
contemporaries.Il  These reports had front side markdowns  (FSMDs) . 
On his  first controlled OER, August  1975,  the rater marked  two 
and  the  additional rater and  reviewer marked  three with  FSMDs. 
December 1975, the report was an abbreviated one with FSMDs.  The 
October 1976 report had FSMDs and the rater marked a two and the 
additional  rater  and  reviewer  marked  three.  The  March  1977 
report  was  an  abbreviated  report  with  FSMDs.  The  July  1978 
report  contained  FSMDs and  the  rater  and  reviewer  both  marked 
two.  Applicant was never augmented into the Regular Air Force. 
The  majority  of  applicant s peers  received  flfirewallll 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 
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. 

4 

A complete 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  faix-ed to 
present  relevant evidence  of  any  error or  injustice warranting 
relief. 

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

F EVALUATIQN: 

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. 

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 
that the record raises issues of error or injustice which r'equire 
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 THE BOARn: 
The application was not timely filed and it would not be  in the 
It  is  the 
interest  of  justice  to  waive  the  untimeliness. 
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. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 

DD Form 149, dated 13 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/DPMAFGP, dated 15 Feb 95. 
Letter, AFMPC/JA, dated 13 Apr 95. 
Letter, AFBCMR, dated 8  May 95. 
Counsel's response, 3  Jul 95. 

WALTER A. WILLSON 
Panel Chairman