ADDENDUM TO 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS 

IN THE MATTER OF: 

DOCKET NUMBER:  92-00263 

COUNSEL:  NONE 

HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 

A  reaccomplished  Promotion  Recommendation  Form  (PRF),  with  a 
Definitely Promote  (DP) recommendation, be placed  in his  Selection 
Folder,  and  his  corrected  record  be  considered  by  a  Special 
Selection Board  (SSB) for promotion by  the CY90 central lieutenant 
colonel selection board. 

By amendment, dated 2 December 1995, applicant requests that: 

His  nonselections  for  promotion  to  lieutenant  colonel,  beginning 
with the CY90 lieutenant colonel board, be declared null and void. 

The  reaccomplished  PRF  submitted  with  his  initial  submission, 
prepared  for  the  CY90  lieutenant  colonel  board,  be  upgraded  to 
reflect a Definitely Promote recommendation. 

His record be  corrected to reflect selection for promotion  (in the 
promotion  zone)  to  the  grade  of  lieutenant  colonel  by  the  CY90 
lieutenant colonel board. 

His record be corrected to reflect continuous active duty since his 
illegal separation, which was based  on nonselection for promotion, 
to  include  restoration  of  all  pay,  benefits,  and  any  other 
entitlements  to  include  carryover  of  the  maximum  amount  of  leave 
for the period he was not on active duty. 

APPLICANT CONTENDS THAT: 

Since  filing  his  initial  appeal,  he  has  learned  that  illegal 
mini-boards  were  used  within  his  major  command  (MAJCOM)  to 
determine  which  officers  would  receive  a  “Definitely  Promote” 
recommendation. 

Although the initial review of his MAJCOM Officer Evaluation System 
( O E S )   procedures  did  not  include  his  in-the-promotion-zone  (IPZ) 
consideration,  he  contacted his  former  senior  rater who  confirmed 
that mini-boards  were  used  to make  the  promotion  recommendations. 
In fact, this confirms how his  senior rater‘s lack of knowledge of 

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his  (applicant's)  performance  during  the  initial  cycle  precluded 
him from competing for a DP as the mini-boards made this decision. 

His  senior  rater  has  confirmed mini-boards  were  used  at  the  1990 
lieutenant  colonel  PRF  cycle,  and  had  it  not  been  for  these 
mini-boards he would have received a DP recommendation. 

The  selection  boards  which  considered  his  file  were  held  in 
violation of statute and DOD Directive.  Each violation of statute 
and directive involved a specific provision designed to afford him 
a certain element of  'protection'  by  requiring specific procedures 
to  ensure  selection  boards  operate  fairly.  .In  his  case,  the 
majority consensus of his jury  (board members) was never developed, 
his  jury  members  (board members)  were  never  told  of  findings and 
his  jury  (board members)  were  never  shown  the  product  of  their 
labors  (the recommended list).  This deliberate  systemic violation 
of  his  basic  rights  as  guaranteed by  statute  and  directive  cries 
aloud  for  relief. 
Therefore,  request  the  AFBCMR  set  aside  the 
nonselections he  received at the selection boards which  considered 
his file for promotion. 

The  evidence provided  again proves  direct  promotion  is within  the 
Board's  authority  and  that  SSBs  cannot  provide  a  full,  let  alone 
fitting measure of relief. 

In  support  of  his  request,  applicant  provided  his  13-page 
statement;  a  memorandum  addressed  to  another  officer  from  the 
Director  of  Personnel  at  the  Air  Intelligence  Agency  regarding 
review  of  the  promotion  recommendation process;  a  statement  from 
the  senior  rater  of  the  PRF  prepared  for  the  CY90A  lieutenant 
colonel selection board; a copy of the  reaccomplished PRF provided 
with  his  initial  submission,  which  reflects  a  "Promote" 
recommendation;  and  a  document  entitled  "Illegal  Air  Force 
Selection Boards:  Documentary Summary.''  Applicant also provided a 
statement  from  the  Management  Level  Evaluation  Board  (MLEB) 
president  for the  1990 lieutenant colonel promotion  recommendation 
cycle.  (Exhibit F) 

EXAMINER'S  NOTE:  With  respect to applicant's  attachment  regarding 
the  illegal  selection boards,  I have  only  attached  tabs  9 and  10. 
Tabs  1  through  8  are  identical  to  the  ones  included  in  the  same 
document provided with the case pertaining to Peter Lamaire. 

STATEMENT OF FACTS: 

On  23  July  1992,  the  AFBCMR  considered  and  denied  an  application 
submitted by applicant requesting that a reaccomplished PRF, with a 
Definitely Promote  (DP) recommendation, be placed  in his  Selection 
Folder,  and  his  corrected  record  be  considered  by  an  SSB  for 
promotion  by  the  CY90  central  lieutenant colonel  selection board. 
(Exhibits A through E). 

Pertinent  facts  pertaining  to  applicant‘s  service  history  are 
contained in the Statement of Facts section of the original Record 
of Proceedings. 

Applicant  was  considered  but  not  selected  for  promotion  to  the 
grade  of  lieutenant  colonel  by  the  CY90,  CY91A,  CY91B,  and  CY92 
central  lieutenant  colonel  selection  boards,  which  convened  on 
16 January  1990,  15 April  1991,  2  December  1991,  and  16 November 
1992,  respectively. 
Based  on  his  status  as  an  officer  in 
sanctuary, he  was  continued on  active duty  and  had  an established 
date of separation of 31 October 1993. 

Information extracted from the Personnel Data System  (PDS)  reflects 
that the applicant was relieved from active duty on 31 October 1993 
and  retired  effective  1  November  1993. 
At  that  time,  he  was 
credited with 20 years and 5 days of active Federal service. 

AIR FORCE EVALUATION: 

The Appeals  and  SSB Branch,  AFPC/DPPPA,  reviewed  this  application 
and recommended denial.  Their comments, in part, follow. 

DPPPA  stated  applicant‘s  request  that  his  record  be  corrected  to 
reflect  continuous  service  since  his  “illegal  separation”  is 
unfounded.  The  applicant  received  full  retirement  from  the  Air 
Force.  It is extremely rare for the Air Force to separate officers 
in  the  grade  of major  and  above.  In  the  absence  of  impropriety, 
only  majors  who  choose  to  separate  do  so  without  receiving,  at 
least, early retirement benefits. 

Regarding the most  recent letters of support from the senior rater 
and MLEB president, DPPPA is not convinced by their statements.  In 
the  letters  provided  by  these  individuals  accompanying  the 
applicant’s  initial  application,  both  stated  new  information 
regarding  the  applicant’s  duty  history  warranted  a  new  PRF. 
Neither  the  senior  rater  nor  the  MLEB  president  prove  they  were 
unaware  of  the  information  at  the  time  the  PRF  was  written. 
Furthermore,  neither  stated  how  this  new  information  actually 
changed  the  applicant’s  promotion  potential.  In  the  most  recent 
letter, written  after the senior rater and MLEB president  retired, 
both  state  there  were  “mini-boards” used  in  assigning  DPs  during 
the  period  of  the  contested  PRF. 
These  statements  are 
contradictory at the very  least, and are more  likely indicative of 
integrity  issues  regarding  the  senior  rater  and  MLEB  president. 
DPPPA  questions  which  scenario  is  to  be  used  in  assessing  the 
validity of the applicant‘s case, the missing information claim, or 
the  “mini-board”  claim?  No  evidence has  been  provided  that might 
even suggest the existence of error or injustice in the writing and 
evaluating  of  the  applicant’s  PRF.  They  have  been  provided  no 
reason  to  believe  the  report  was  not  a  valid  assessment  of  the 
applicant’s  promotion  potential  at  the  time  it  was  written.  The 
applicant had been on station with the senior rater for over a year 

3 

when  the  PRF was  written,  and  DPPPA has  no  reason  to believe  the 
senior  rater was  not  fully aware of  the  applicant’s achievements. 
The  “mini-boards’‘  claim  is  no  more  than  a  vague  admission  of 
impropriety,  made  after  retirement,  that  is  unsubstantiated  by 
necessary  Inspector  General  (IG)  corroboration. 
DPPPA  strongly 
recommended denial of the applicant’s request for a replacement PRF 
and corresponding SSB consideration. 

Regarding  applicant’s  request  for direct  promotion,  DPPPA did  not 
believe  it  would  be  the  corresponding  remedy  to  the  applicant’s 
claims.  If the applicant were to prove the PRF system or promotion 
system  to  be  in  error  (and they  do  not  believe  they  are),  the 
remedy  would  not  be  the  promotion  of  the  applicant. 
It  is 
illogical  to assume  this  requested action has  anything to do with 
the  legality  of  the  entire  promotion  system.  The  applicant  has 
compiled  an  exhaustive  appeal  history,  with  each  case  stating 
different  reasons  for  the  applicant‘s  belief  that  he  was  treated 
unfairly by  the promotion  system.  DPPPA has been  given no  reason 
to believe  the applicant  is making  an attempt to  correct an error 
or injustice, but that he is attempting to retroactively change his 
promotion history.  The complete evaluation is at Exhibit G. 

The  Staff  Judge  Advocate,  AFPC/JA,  opined  that  the  application 
should  be  denied,  stating  the  applicant  has  failed  to  present 
relevant evidence of any error or injustice warranting relief.  The 
JA comments, in part, follow. 

JA stated that although the applicant styled the first part of his 
2 December  1995  brief  “Ground  for  Relief: 
Illegal  Promotion 
Recommendation  Process,“  he  did  not  allege  any  systematic 
illegality  with  the  Air  Force‘s promotion  recommendation process. 
Rather,  he  alleged  that  his  particular  rating  chain  violated  the 
governing  regulation  by  using  prohibited  “mini-boards”  and 
considering prohibited  subjects in awarding  PRFs.  On  that  issue, 
JA  deferred  to,  and  concurred  with,  the  evaluation  provided  by 
AFPC/DPPPA. 

Noting applicant‘s contentions that the promotion selections boards 
in  the  Air  Force  are  contrary  to  Air  Force  regulation,  DOD 
Directives  and  statute,  JA  stated  there  is  no  provision  of  law 
specifically  requiring  each  member  of  a  promotion  board  to 
personally  review  and  score  the  record  of  each  officer  being 
considered by the board.  The House Armed  Services Committee Report 
(97-141) that accompanied the  Defense Officer  Personnel Management 
Act  (DOPMA)  Technical  Corrections  Act  (PL  97-22)  specifically 
references  panels  as  a  type  of  administrative  subdivision  of 
selection boards.  Consequently, it is clear that at the time DOPMA 
was  enacted,  Congress  was  certainly  aware  of  the  existence  of 
promotion  board  panels  and  expressed  no  problem  with  their  use. 
Furthermore,  the  language  of  10  USC  616(a)  and  (c)  (the 
recommendation  for promotion  of  officers by  selection boards,  not 
just 617(a) (the certification by a majority of the members of the 
board),  speaks  to  the  corporate  board  and  not  to  individual 
members.  In  essence,  a  majority  of  the  board  must  recommend  an 

4 

officer  for promotion  and  each member  is required to certify that 
the corporate board has considered each record, and that the board 
members, in their opinion, have recommended those officers who "are 
best  qualified  for  promotion."  The  members  are  not  required  to 
reach this point through an individual examination of every record, 
although  they  may  do  so. 
Rather,  based  on  their  overall 
participation  in the board's  deliberations, and  the  fact  that  the 
process involves the random assignment of officer selection records 
to  panels  to  achieve  relatively  equal  quality  and  procedures  to 
insure  that  the  quality  of  the  records  of  those  officers 
recommended  for  selection  among  the  panels  is  essentially 
identical,  the members  are  in a position  to honestly  certify that 
the process  in which  they  participated properly  identified, based 
on the  record before  them, those officers who were  best  qualified 
for  promotion. 
In  JA's  opinion,  that  is  enough  to  assure 
compliance with all the statutory requirements. 

Applicant  argues  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.  JA opined this argument is without merit.  It is clear 
that the directive's  purpose in requiring separate boards  for each 
competitive category is to insure that these officers compete only 
against  others  in  the  same  competitive  category  -  to  assure 
fairness  and  compliance  with  Title  10,  Chapter  36  (particularly 
Section 621 requirements).  In truth, nomenclature notwithstanding, 
the  Air  Force's  competitive  category  panels,  which  are  convened 
concurrently  as  permitted  by  the  Directive,  fully  accomplish  this 
stated purpose;  i.e., members of  each competitive category  compete 
within  their  respective panel  only  against  other  officers  of  that 
same  category.  Thus,  the  panels  operate  as  separate  boards  for 
purposes of the DOD Directive.  More  importantly, they  fulfill all 
the requisite statutory and regulatory requirements. 

JA  disagreed  with  applicant's  argument  that  the  board  president's 
duties  in  the  Air  Force  process  violates  DOD  Directive  1 3 2 0 . 1 2 ,  
Section  F,  para  2(a) (1). 
The  duties  prescribed  for  board 
presidents  by  Air  Force  directives  do  require  the  president  to 
perform  several  critical duties  relative to board  scoring.  Those 
duties  do  not,  however,  in  any  manner,  constrain  the  board  from 
recommending  for  promotion  the  best  qualified  among  the  fully 
qualified  officers  being  considered. 
Applicant  has  offered  no 
proof  that  the president  of  this or  any Air  Force  selection board 
has  ever  acted  contrary  to  law or  regulation.  In the  absence  of 
evidence to the contrary, the board president and other members  of 
the  board  are  entitled  to  the  presumption  that  they  carried  out 
their duties and responsibilities properly and according to law. 

Applicant  cites  case  law  to  support  the  proposition  that  he  is 
entitled  to  "full and  fitting relief."  He  then  suggests  that  in 
the  context  of  this  case  such  relief  would  equate  to  a  direct 
promotion.  Even  if one were  to agree with  his  specious  arguments 
challenging  the  Air  Force  selection  board  process,  it  does  not 
follow  that  the  remedy  for  such  behavior  would-or  should-include 

5 

Indeed,  applicant  has  failed  to 
this  applicant's  promotion. 
present  any  evidence  whatsoever  that  the  systematic  errors  he 
alleges  were  responsible  for his  promotion  nonselection.  The  law 
is clear that  in order to obtain relief, the officer must  prove  a 
nexus  (causal  connection)  between  the  alleged  error  and  the 
promotion passover. 

Noting  applicant's  claims that his nonselection cannot be  remedied 
by  SSB consideration, JA opined that 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. 

As  to the request for direct promotion, both Congress and  DOD have 
made  clear  their intent that errors ultimately affecting promotion 
should  be  resolved  through  the  use  of  special  selection  boards. 
Air  Force  policy  mirrors  that  of  10 USC  628(b) and  DOD  Directive 
1320.11, para  D.1.  Moreover, JA has repeatedly agreed with AF/JAG 
(OpJAGAF  1994/17)  that  the  AFBCMR  is  not  in  the  appropriate 
position to grant a direct promotion-that in promotion matters, the 
Board's  authority  should be  limited to correcting military  records 
which may have affected the promotion process, and recommending SSB 
consideration  in  appropriate  cases.  The  United  States  Court  of 
Federal  Claims  concurs  in  this,  Finkelstein  v.  United  States,  29 
Fed.Cl.611  (1993).  Otherwise, the  BCMR-which is not  comprised  in 
accordance  with  10  USC  612  and  has  no  basis  for  comparing  an 
applicant's  record  with  those  of  his  competitors-would  be 
essentially usurping the statutory power of promotion boards.  At a 
minimum,  it is safe to say that the BCMR  has not  in the past  (and 
likely will  not  in  the  future) considered direct promotion  except 
in the most extraordinary circumstances where SSB consideration was 
deemed  totally  unworkable.  The  applicant's  case  clearly  does  not 
fall into that category. 

Fi 
nally,  even  if  JA  were  to  assume  arguendo,  that  applicant  had 
es 
tablished  an  error  that  an  SSB  could  not  remedy  (a notion  they 
fi 
rmly reject), it is quite another matter to directly promote him. 
Th 
at  would  presuppose  that  applicant was  indeed one  of  those best 
qualified to be promoted.  Applicant competed at the CY90 and later 
promotion  boards  with  a  "promote" recommendation  and  if,  indeed, 
his  record were  truly deserving, he  could have-and  would have-been 
selected for promotion. 

The complete evaluation is at Exhibit H. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant  stated  that  while  AFPC  attempts  to  undermine  the 
integrity of his  evaluators, they provide  nothing  to overcome  the 
statements from those evaluators. 
The requirements of AFR  36-10 are clear; the use of  mini-boards  is 
prohibited in the PRF process.  While AFPC would like the AFBCMR to 
ignore  these  rules, his  senior rater and  MLEB president  confirmed 
the same mini-board process was used in 1990 just as his MAJCOM  IG 
confirmed  these  illegal  actions  occurred  on  the  1991  (and later) 
lieutenant colonel PRF cycles.  The evidence also confirms that had 
these processes not been used, he would have received a "Definitely 
Promote" recommendation.  He, therefore, asks the Board to upgrade 
the  promotion  recommendations  he  received  to  reflect  "Definitely 
Promote"  as  recommended  by  his  former  senior  rater  and  MLEB 
president. 

In  his  petition  he  documented  specific violations  of  statute  and 
directive  which  go  to  the  very  heart  of  the  due  process 
requirements  imposed  on  selection  boards  by  statute  and  DOD 
Directive.  The evidence is not just clear but convincing as well  - 
particularly  as AFPC  has  not  rebutted a  single ground  for relief. 
He  has  provided  not  only  evidence  of  probable  error,  but  a 
preponderance  of  evidence  showing  the  Air  Force  selection  board 
process  was  operated  totally  outside  the  law  when  the  boards  met 
that considered his file for promotion.  Any of these violations of 
law  and  directive  would  singularly  dictate  set  aside  of  the 
liability  he  incurred  as  a  result  of  these  illegal  boards. 
Collectively, these violations mandate such action by  the board  to 
provide him "full and fitting relief." 

In  view  of  the  deliberate  violation  of  DOD  Directive  1320.12 
requirements,  applicant's  requests  the  Board  to  direct  his 
promotion to the grade of lieutenant colonel as if selected by  the 
CY90  lieutenant colonel board.  In view  of  the total disregard by 
Air  Force  officials  for  higher  level  directive  and  the  law,  only 
the  AFBCMR  can  intervene  and  grant  full  and  fitting  relief  and 
grant promotion to lieutenant colonel. 

Applicant's  response, with attachments, is at Exhibit J. 

THE BOARD CONCLUDES THAT: 

1.  The applicant has exhausted all remedies provided by existing 
law or regulations. 

2 .  

The application was timely filed. 

Insufficient  relevant  evidence  has  been  presented  to 
3. 
demonstrate  the  existence  of  probable  error  or  injustice.  After 
reviewing  the  evidence  of  record, we  are  not  persuaded  that  the 

7 

* 

8 

contested  PRF  was  rendered  in  error  or  is  unjust.  Applicant's 
contentions are duly noted; however, in our  opinion, the  detailed 
comments  provided  by  the  appropriate  Air  Force  office  more  than 
adequately  addresses  his  contentions. 
In  addition,  applicant's 
allegations concerning the Air Force's promotion system are noted. 
Again,  we  find  the  applicant's assertions,  in  and  by  themselves, 
are not  sufficiently persuasive  to override the rationale provided 
by  the  Staff  Judge  Advocate. 
Therefore,  we  agree  with  the 
recommendations of  the Air Force and adopt the rationale expressed 
as  the  basis  for  our  conclusion  that  the  applicant  failed  to 
sustain his burden of establishing the existence of either an error 
or injustice.  In view of the above findings, we-find no basis upon 
which to recommend favorable consideration of his requests. 

The  applicant's case  is adequately  documented  and  it  has  not 
4. 
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  not 
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  not  considered  with  this 
application. 

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 Chair 
Mr. John L. Robuck, Member 
Mr. Gregory H. Petkoff, Member 

The following documentary evidence was considered: 

Exhibit F. DD Form 149, dated 2 Dec 95. 
Exhibit G. Letter, AFPC/DPPPA, dated 8 Mar  96. 
Exhibit H. Letter, AFPC/JA, dated 15 Apr 96. 
Exhibit I. Letter, AFBCMR, dated 22 Apr 96. 
Exhibit J. Applicant's Response, dated 3 Jun 96, w/atchs. 

CHARLES E. BENNETT 
Panel Chair