DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 95-00486 

1 9 1998 

-  MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation- of the Air Force Board for Correction 

of Military Records and under the authority of Section 1552, Title 10, United States Code (70A 
Stat 116), it is directed that: 

records of the Department of the Air Force relating to 
corrected to show that: 

a.  The Company Grade Officer Performance Reports, AF Forms 707B, rendered for the 
periods 10 May 1989 through 9 May 1990,lO May 1990 through 9 May 1991 and 10 May 1991 
through 9 May 1992, be, and hereby are, declared void and removed fiom his records and the 
attached reaccomplished Officer Performance Reports (OPRs) be accepted for file in their place. 

b.  The closeout dates on the reaccomplished OPRs be changed fiom 10 May 1990 to 

9 May 1990 and fiom 10 May 1991 to 9 May 1991. 

c.  The comments contained in Section 111, Job Description, of the Promotion 

Recommendation (PRF), AF Form 709, prepared for consideration by the Calendar Year 1993B 
Major Board, which convened on 6 December 1993, be deleted from that document and the 
comments contained in Section I11 of the attached reaccomplished PRF be substituted in their 
place. 

It is further directed that he be considered for promotion to the grade of major by Special 
Selection Boards (SSBs) for the Calendar Year 1993B and Calendar Year 1994A Central Major 
Selection Boards, with inclusion of the reaccomplished OPRs and the corrected PRF, and, if he is 
selected for promotion to the grade of major, the results of the particular Special Selection Board 
be made available to the Air Force Board for Correction of Military Records at the earliest 
practicable date so that all necessary and appropriate actions may be taken consistent with his 
selection for retroactive promotion. 

Air Force Review Boards Agency 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET "4BER:  95-00486 

APPLICANT REOUESTS THAT: 

1.  His Officer Performance Reports  (OPRs) ,  closing 9 May  1990, 
9 May  1991 and 9 May  1992, be replaced with the reaccomplished 
OPRs provided. 
2.  His  Promotion  Recommendation  Form  (PRF)  for  the  CY93B 
(6 December 1993) Major Board be upgraded to "Definitely Promote" 
with the reaccomplished PRF provided. 
3.  His  nonselections  for  promotion  to  major  by  the  CY93B 
(6 December 1993) and CY94A (22 August 1994) Central Major Boards 
be set aside. 

- 

4.  His records be corrected to show he was promoted to the grade 
of major as if selected in-the-promotion zone (IPZ) by the CY93B 
(6 December 1993) Major  Board, to  include award  of  back  dated 
date of rank, back pay and any and all entitlements denied as a 
result of promotion nonselection. 

APPLICANT CONTENDS THAT: 

The  contested  OPRs  were  written  without  the  benefit  of 
performance feedback from his supervisors.  His supervisors did 
not have full knowledge of his day-to-day activities. 
As a result of errors in his record of performance, the PRF he 
received for the CY93B Major Board was inaccurate.  The contested 
PRF  contains  an  erroneous  duty  title,  and  the  comments  and 
overall recommendation do not reflect his true performance based 
potential. 
There  were  illegal  Management  Level  Evaluation  Board  (MLEB) 
procedures in his PRF process. 

The promotion boards  which  considered his  record  for promotion 
were held  in violation of  statute, DOD Directive and Air Force 
Regulation. 

In  support  of  his  request,  applicant  submits  a  personal 
statement, with  attachments, which  include  the  reaccomplished 

. 

OPRs, statements from the rating chain of the contested reports, 
a Congressional Inquiry and additional documents associated with 
the issues cited in his contentions (Exhibit A). 

STATEMENT OF FACTS: 
The  applicant's  Total  Active  Federal  Military  Service  Date  ' 
(TAFMSD) is 18 July 1978. 

On  26  August  1982,  the  applicant  was  appointed  a  second 
lieutenant, Reserve of the Air Force.  He was integrated into the 
Regular Air Force on 10 April 1989 and was progressively promoted 
to  the grade of  captain, effective and with  a date of'rank of 
26 August 1986. 

The following is a resume of  applicant's  OPR  ratings subsequent 
to his promotion to the grade of captain: 

Period Endinq 
9 May 87 
9 May 88 
9 May 89 
9 May 90 
9 May 91 
9 May 92 
9 May 93 
9 May 94 

* 
* 
* 
# 
## 

Evaluation 

1-1-1 
1-1-1 
Meets Standards (MS) 

MS 
MS 
MS 
MS 
MS 

*  Contested OPRs 
#  Top report at  the time he was  considered and nonselected for 
promotion  to  Major  by  the  CY93B  (P0493B) Central Major  Board, 
which convened on 6 December 1993. 
##  Top report at  the time he was considered and nonselected for 
promotion  to  major  by  the  CY94A  (P0494A) Central  Major  Board, 
which convened on 22 August 1994. 
On 30 April 1995, the applicant was relieved from active duty and 
retired effective 1 May  1995 in the grade of  captain, under the 
provisions  of  AFI  36-3203  (voluntary retirement  for  years  of 
service established by  law).  He  served a total of  16 years, 9 
months and 13 days of active service for retirement. 

AIR FORCE EVALUATION: 
The  Chief,  Evaluation  Procedures  Section,  HQ  AFMPC/DPMAJEP, 
reviewed this application and stated that, in accordance with the 
governing regulation, a rater's  failure to conduct a required or 
requested  feedback session will  not, of  itself, invalidate any 
subsequent OPR  or  PRF.  DPMAJEP indicated that  even  though the 

2 

AFBCMR  95-00486 

applicant alleges he requested feedback and did not  receive it, 
no evidence has been presented to reflect he elevated this issue 
through his rating chain until it was resolved.  DPMAJEP finds no 
violation of regulatory provisions that would result in the OPRs 
being  flawed.  The OPRs in question are considered an accurate 
assessment  of  the  applicant's  performance  when  they  become  a 
matter of record.  DPMAJEP therefore recommended the applicant's 
.request be denied  (Exhibit C). 

4 

The Chief, Evaluation Boards Section, HQ AFMPC/DPMAJEB, reviewed 
this application and  indicated that  they will  only address the 
technical aspects of this case. DPMAJEB stated that there is no 
information provided  in this case that  specifically relates  to 
errors  ar  inaccuracies  in  the  Promotion  Recommendation  Form 
(PRF), other than a statement by the member.  DPMAJEB stated that 
although the applicant contends the PRF is defective, he provided 
no specific information regarding his claim other than his OPRs 
were  not  accurate.  DPMAJEB  finds no  evidence  to  support  the 
allegation since the original PRF was not  included in the case. 
With regard to allegations of MLEB improprieties, DPMAJEB stated 
that  no  information  is  provided  to  substantiate  this  claim. 
DPMAJEB indicated that the applicant has concluded that because 
officers  who  receive  "DP"  recommendations by  senior raters  or 
MLEBs  are promoted  near  100% of  the  time, then the process  is 
illegal because the promotion selection board is not making  the 
decision.  DPMAJEB stated that  some management  levels employ  a 
technique not addressed in AFR  36-10 in which they use comments 
such as  "my top promote," and  'if  I had one more  "DP" he'd  get 
it,"  and  other  comments  intended  to  convey  to  the  central 
selection board  how  they  rank-ordered their officers.  DPMAJEB 
indicated that this is not in violation of Air Force directive. 

DPMAJEB stated that the PRF in question is considered an accurate 
and  objective assessment  of  the  applicant's  performance  at  the 
time it was rendered.  DPMAJEB indicated that the documentation 
presented in the form of reaccomplished OPRs does not dispute the 
fact that  this report was an accurate assessment when rendered, 
and  the  changes  being  requested  are  post-rating  assessment 
following nonselection by  the promotion  board.  DPMAJEB  stated 
that  if  the  applicant  is successful in his  appeal  to have  the 
contested OPRs replaced, they recommend that he solicit a new PRF 
from the same senior rater who accomplished the original one and 
this PRF be forwarded to the MLEB president for review.  DPMAJEB 
stated that  there  is no evidence the applicant did not  receive 
anything but  fair and  equitable  treatment  in the  PRF  and  MLEB 
process. 
A complete copy of this evaluation is appended at Exhibit D. 

The Chief, Selection Board Secretariat, HQ AFMPC/DPMAB, reviewed 
this application and  stated that  the applicant argues  that  the 
board administratively violated 10 U.S.C., Chapter 616, by using 
a panel  to  score records.  He  alleges that  "a majority  of  the 
members of the board are never queried to develop the consensus 

3 

AFBCMR  95-00486 

. 

required  by  statute."  DPMAB  indicated  that  the Air  Force  has 
organized central selection boards into panels for many years and 
the procedure has been reviewed again by HQ USAF/JAG as late as 
February 1992, and AFMPC/JA in May  1994.  The panel concept has 
safeguards  to  ensure  an  equal  distribution  of  the  quality 
spectrum of  records to  each  panel.  When  more  than  one panel 
scores a given competitive category, all the eligible records are 
.aligned in  reverse  social  security  number  sequence  and  then 
distributed in groups of 20 records to each panel.  As each panel 
scores its share of records, an order of merit  (OOM) is formed. 
One of  the major  responsibilities of  the board  president  is to 
review the orders of  merit  to ensure consistency of  scoring on 
each panel and consistency of quality among panels. 
DPMAB  stated  that  the  applicant  also  challenges  the  scoring 
system used by central selection boards and offers his opinions 
and interpretations.  DPMAB does not  agree with those comments. 
The  scoring  scale, from  6  to  10  in half  point  increments, has 
been used successfully for many years.  To ensure its success, a 
split  resolution process  is used.  A  split occurs when  two or 
more panel members assign record scores that are greater than a 
point  and  a  half  different.  When  this  occurs, the  record  is 
brought back  to the panel  to resolve the difference of opinion. 
This process ensures that one or two officers on a given panel do 
not  have  a  disproportionate  amount  of  influence  over  any 
particular record. 

DPMAB  indicated that  the  applicant  alleges the  selection board 
report violated  10 U.S.C., Chapter  617.  DPMAB  stated that  as 
previously  referenced, in  February  1992, the  USAF/JAG  reviewed 
both  10  U.S.C., Section  616,  and  10 U.S.C., Section  617,  and 
determined that their selection board procedures comply with the 
applicable provisions of statute and policy. 
With  regard to  the applicant's  allegation that  the  board  which 
considered him for promotion was illegal because separate boards 
were not held  for each competitive category.  DPMAB stated that 
he  is  wrong.  DODD  1320.12 clearly  states  "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  U.S.C.  617  may  be 
consolidated into a single package  for submission as prescribed 
under 10 U.S.C. 618." 
As  to  the  applicant's  opinions  and  interpretations  on  the 
responsibilities of the board president, DPMAB disagrees with the 
applicant's comments.  DPMAB stated that the board presidents for 
the CY93 and CY94 Central Major Selection Boards performed their 
duties  in  accordance  with  the  responsibilities  of  the  board 
president  addressed  in  AFR  36-89  and  the  Memorandum  of 
Instructions to the board from the Secretary of the Air Force. 

4 

AFBCMR  95-00486 

With  regard  to  the  applicant's  statement  that  the  Special 
Selection  Board  (SSB) process  is  illegal  since  the  original 
central boards  are  illegal, DPMAB  stated  that  since  his  first 
accusation  is  without  merit,  so  is  his  second.  As  to  his 
comments about  the selecting of  benchmark records, DPMAB stated 
that it has already been pointed out that the quality of records 
in  each  gray  zone  is  identical.  In  view  of  the  policy  of 
&electing  10  benchmark  records  (5 selects, 5 nonselects)  when  ' 
possible, it is practical to select the benchmarks from a panel 
that  has  an  ample  number  of  records  in  its  gray  zone.  DPMAB 
stated that it should be noted that the numerical scores from the 
.  original board have nothing to do with the numerical scores given 
to  the  benchmark  records by  an  SSB, only  the  select/nonselect 
Because  the 
status  of  the  benchmark  records  is  important. 
benchmark records are very similar in quality  (having come from 
the same score category of the original board), it is not unusual 
to  have  some  inversion in  the  benchmark  order  of  merit  (OOM) 
created by the SSB.  Usually, inversion is of no consequence as 
very often the consideree's  record receives the lowest score or 
is  among  the  lowest  score.  Regardless  of  the  situation, SSB 
members are not informed which record is a benchmark record or a 
consideree record. 
DPMAB  stated  that  the  application  contains  faulty  logic, 
incorrect  statements, directives/statutes/regulations  taken  out 
of  context, and is totally unfounded.  A  complete copy of  this 
evaluation is appended at Exhibit E. 
The  Chief,  Promotion,  Evaluation  and  Recognition  Division,  HQ 
AFPC/DPPP,  reviewed  this  application  and  recommended  it  be 
denied.  DPPP stated that the application is timely only as  it 
pertains to the OPR closing May 92.  With regard to the Air Force 
advisory opinions pertaining to the evaluation process, the PRF 
process  and  the  board  process,  respectively, DPPP  agrees  with 
their assessments. 

with regard to the contested OPRs, DPPP stated that  the raters' 
claims that they could have provided a better report if there had 
been  formal  feedback sessions are not  convincing.  Each of  the 
OPRs contains a block  immediately following the rater's  overall 
assessment  to  document  reasons  for  no  performance  feedback. 
Absence of  information in this block  is equivalent to the rater 
certifying that performance feedback did, in fact, occur.  DPPP 
indicated that the applicant speculates his OPRs were erroneous 
and  therefore the board  considered erroneous  information.  The 
space for written information on the OPR  form is limited.  DPPP 
stated that the OPRs did not contain erroneous information, they 
just  did  not  contain  the  information  the  aDDlicant  believes 
should have been included on the reports.  DPPP points out that 
it  is  the  rating  chain,  not  the  ratee  who  determines  what 
information  is  included  on  an  OPR.  The  willingness  of  the 
evaluators  in  the  applicant's  rating  chain  to  now  reaccomplish 
the reports does not make the original reports erroneous. 

5 

AFBCMR  95-00486 

DPPP  stated  that  the  applicant  provided  no  support  for  his 
request  to  upgrade  the  CY93B  (P0493B)  PRF  to  a  "Definitely 
Promote."  In his  arguments  concerning  the  PRF, the  applicant 
continually equates an MLEB with a central selection board.  DPPP 
points out that the statutes on which the applicant relies govern 
central  selection  (promotion)  boards  only;  therefore,  his 
arguments are without merit.  DPPP stated that Air Force policy 
.is clear - in  order  to  effectively  challenge  a  PRF, both  the 
senior rater and  the MLEB  president  must  support the requested 
change.  The senior rater addresses only the OPR issue, and the 
MLEB president is not heard from. 

DPPP indicated that evaluation reports receive exhaustive reviews 
prior  to  becoming  a  matter  of  record.  Given  a  retrospective 
view, any report can be  rewritten to make  it more hard hitting, 
to  provide  embellishments,  or  enhance  the  ratee's  promotion 
potential.  The evaluators in this case do not explain how they 
were hindered from rendering a complete and accurate assessment 
of  the applicant's performance prior to the report being made a 
matter of record. 

DPPP views this appeal as nothing more than an attempt to rewrite 
history based  on a retrospective view  following the applicant's 
nonselection for promotion.  DPPP strongly recommends denial of 
all requested actions.  However, if  the Board determines relief 
is  appropriate,  they  urge  against  granting  direct  promotion. 
DPPP stated that the applicant did not ask for SSB consideration 
and  argues  the  legality  of  the  SSB  process.  However,  absent 
clear-cut evidence the applicant would have been a selectee had 
the contested reports not been considered, DPPP believes a duly 
constituted  selection  board  applying  the  complete  promotion 
criteria  is  in  the  most  advantageous  position  to  render  this 
vital  determination. 
Therefore,  if  the  Board  directs  the 
reaccomplished reports be accepted for file, SSB consideration by 
CY93B  (6 December 1993) and CY94A  (22 August  1994) Major Boards 
would be appropriate. 
A complete copy of this evaluation is appended at Exhibit F. 

The Staff Judge Advocate, HQ AFPC/JA, stated that they agree with 
HQ AFPC/DPPP that the application is timely only as it pertains 
to  the  OPR  closing  May  1992. 
JA  indicated  that  the  OPRs 
challenged in this case were written in 1990, 1991-1992, yet the 
application was filed 1 February 1995.  By law, a claim must be 
filed within three years of the date of discovery of the alleged 
error or injustice.  JA stated that it is obvious that the errors 
claimed  here  were  discoverable  at  the  time  they  occurred; 
applicant  has  offered  absolutely no  substantiation for a  claim 
that they were not discovered until 1993.  N o r   has he offered any 
explanation for filing  late.  JA would  normally  recommend  that 
the  application be  denied  as untimely, however, they  are  aware 
that the Board has determined that it must adhere to the holding 
in  Detweiler  v.  Pena  -  which  prevents  application  of  the 

6 

AFBCMR  95-00486 

statute's time bar if the applicant has filed within three years 
of separation or retirement. 

With respect to the applicant's challenge to the validity of the 
OPRs and PRF, JA can discern no legal issue, and they defer to 
the  HQ  AFPC/DPPP  advisory. 
JA  indicated  that  even  if  the 
applicant were correct that his three OPRs  should be  corrected, 
i t  would  not  automatically  follow that  his  CY93  PRF  should be  ' 
upgraded  to  a  definitely  promote  (DP).  JA  stated  that  the 
applicant's  brief  in  that  regard  departs  from  any  logical 
analysis  in suggesting that  corrections to  the  reports  somehow 
-translate ipso  facto  into  a  DP. 
The  alleged  "incomplete 
promotion  recommendation"  and  inability  'to  compete  fairly  for 
one of  the few  'Definitely Promote'  recommendations" would only 
mean  that  a  new  PRF  would  be  required. 
The  actual 
recommendation, however, would still be a matter for senior rater 
and management level determination. -JA noted that no support has 
been provided for an upgrade to the applicant's PRF. 
JA noted that the applicant alleges that he was denied his right 
to fair and equitable consideration for promotion because he was 
forced  to  compete  against officers, three-fourths of  whom  were 
from major commands using \\specialN promote recommendations.  JA 
stated that despite applicant's charts, he has offered absolutely 
no proof that the use of "special promote" PRFs prejudiced him at 
his  IPZ promotion  board.  The  burden  of  proof  rests  with  the 
applicant, and in the absence of any evidence of error, the Board 
is not in a position to render relief.  JA has previously opined 
that the governing regulation, AFR  36-10, does not prohibit the 
use  of  stratified  "promote"  recommendations  and  it  violates 
neither the letter nor spirit of any portion of the regulation. 

JA stated that the bulk of applicant's  submission is the latest 
version of  the canned brief attacking the Air Force's  promotion 
recommendation and promotion systems.  It begins with the claim 
that  the  PRF  process  is  contrary  to  statute  because  the 
Management  Level  Evaluation  Board  (MLEB) acts  as  a  de  facto 
promotion board, and the results of  the MLEB  are  '\confirmed" by 
the central board at a rate approaching 100%.  JA stated that in 
drawing  that  conclusion, applicant  relies upon  statistics that 
show  that  close  to  100% of  the  officers who  have  received  DP 
promotion recommendations have been  selected for promotion.  As 
JA  noted  previously,  the  very  high  rates  of  selection  for 
promotion of officers with DP recommendations was fully expected 
and consistent with the aims of  the officer evaluation program. 
JA stated that  the OES program  fully comports with  the  law and 
governing regulations. 
The officer evaluation system  (OES) is just  that  - a system of 
evaluation and not  one of ultimate selection for promotion.  It 
is the function of the OES to assist central selection boards to 
carry out  their  statutory duties and  not  to preempt  or replace 
that  process.  JA  indicated that  the  applicant's  argument  that 
officers receiving DP recommendations constitutes a pre-selection 

7 

AFBCMR  9 5 - 0 0 4 8 6  

' 

of  these  officers,  thereby  effectively  usurping  the  selection 
board statutory authority, ignores reality and is, in their  (JA) 
view, totally unsubstantiated.  Senior raters, management level 
evaluation boards and 'aggregate"  boards are all part of the Air 
Force's  evaluation  system  designed  to  assist  in  the  promotion 
process.  Certainly critical to the applicant's  argument is his 
inescapable  conclusion  that  selection  boards  are  necessarily 
.ignoring their statutory obligation to fully consider the records 
of  all  candidates  and  thereafter  exercise  their  independent 
authority to select only the best qualified.  JA stated that the 
Board  should  not,  in  the  absence  of  proof,  entertain  such  a 
notion.  Selection boards  are  instructed that  they are to make 
the selections for promotion; PRFs are aids in that process and 
nothing  more.  To  suggest,  as  applicant  does,  that  selection 
boards only compare the \\promote" records with one another after 
having  \\rubber stamped" the selection of all definitely promote 
candidates assumes a total abandonment of their responsibilities 
by  board  members. 
In  the  absence  of  proof  of  such  serious 
charges,  JA  must  presume  that  selection  boards  have  followed 
their instructions and performed their duties in the prescribed 
manner. 
JA indicated that the PRF process is merely the latest in a line 
of procedures used by the Air Force to assist promotion boards in 
identifying the best qualified officers for promotion.  Contrary 
to the applicant's  implications, an MLEB  does not determine who 
will  receive particular promotion recommendations.  Rather, the 
MLEB  determines  only  Definitely  Promote  (DP) allocations.  An 
officer' s  senior  rater  still  must  apply  the  allocations  and 
ultimately decide which officers receive which recommendation or 
are submitted for 'aggregation. 
JA stated that applicant's position seems to presuppose that all 
boards are 10 U.S.C. ,  Section 611(a) , promotion boards -  this is 
not true.  JA indicated that the applicant's argument that MLEBs 
are  flawed  because  they  fail  to  incorporate  the  safeguards 
required for 10 U.S.C., Section 611(a), boards is totally without 
merit.  Promotion selection boards are controlled by Title 10 and 
MLEBs are part of the Air Force's  internal evaluation system, it 
is  not  part  of  the  promotion  selection  process. 
As  a 
consequence, Title 10 requirements do not--and should not--apply 
to MLEBs  or any other aspects of the OES.  To require otherwise 
would  suggest that OES  is not  an evaluation process, as  it  is, 
but merely a part of the promotion process. 
The  applicant  avers  that  promotion selection boards  in the Air 
Force  are  contrary to Air  Force  regulation, DoD Directives  and 
statute.  Specifically, he  argues  that  promotion  board  panels 
operate  independently  of  one  another,  thereby  rendering  as 
impossible  the  promotion  recommendation by  \\a majority  of  the 
members  of  the  board"  mandated  by  10 U.S.C. 616  and  617.  JA 
stated  that  there  is  no  provision  of  law  that  specifically 
requires each  member  of  a promotion board  to personally  review 
and  score  the  record  of  each  officer  being  considered  by  the 

It 

8 

AFBCMR  95-00486 

4 

board.  The House Armed  Services Committee Report  (97-141) that 
accompanied the Defense Officer Personnel Management Act  (DOPMA) 
Technical  Corrections Act  (P.L. 97-22)  specifically  references 
panels  as  a  type  of  administrative  subdivision  of  selection 
boards.  JA indicated that 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. 
JA  indicated  that  the  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.  In JA's  opinion, 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,- 
JA  disagrees  with  the  applicant's  argument  that  the  board 
president's  duties  in the Air  Force promotion process  violates 
DoD  Directive  1320.12, Section  F,  para  2(a) (1).  The  duties 
prescribed for board president by Air Force directives do require 
the  president  to  perform  several  critical  duties  relative  to 
board  scoring.  However,  those  duties  do  not,  in  any  manner, 
constrain  the  board  from  recommending  for  promotion  the  best 
qualified  among  the  fully  qualified  officers being  considered. 
JA  stated  that  the  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. 
JA indicated that the author of applicant's brief claims, in the 
15 December  1995  addendum,  that  the  likely  cause  of  the  Air 
Force's  multiple and heinous violations of law and regulation was 
i t s   failure t o   adhere to DOD requirements to develop and  issue 
standard operating procedures.  JA stated that the author of the 
brief  takes a totally illogical leap in his analysis.  Even  if 
one  were  to  agree  with  his  specious  arguments  alleging  the 
"intolerable,  flagrant  abuses  of  discretion  by  Air  Force 
officials charged with  management  of  the promotion  system," it 
does  not  follow  that  the  remedy  for  such  behavior  would---or 
should--include  this  applicant's  promotion.  JA  indicated  that 
the applicant has failed to present any evidence whatsoever that 
the  systematic  errors  he  alleges  were  responsible  for  his 
promotion nonselection. 

The applicant claims that his nonselection cannot be remedied by 
special  selection board  ( S S B )   consideration.  He  bases  this  on 
two reasons:  (1) the benchmark records that would be used in an 
SSB  are  invalid  because  the  original  promotion  boards  that 
rendered them were  illegal; and,  ( 2 )   scoring procedures used by 
Air Force SSBs are arbitrary and capricious.  JA stated that the 

9 

AFBCMR  95-00486 

applicant  has not provided  a meritorious application warranting 
the need for any relief.  As for the merits of these claims, JA 
concurs with the conclusions of HQ AFPC/DPPB in its advisory.  In 
JA's  opinion, the Air Force's  SSB procedure  fully comports with 
the 10 U.S.C., Section 628(a) (2) requirement.  The burden is on 
the applicant to prove otherwise, and he has failed to do so. 
,As to the applicant's request for direct promotion, JA indicated  4 
that  both  Congress  and  DoD  have  made  clear  their  intent  that 
errors ultimately affecting promotion should be resolved through 
the  use  of  special  selection  boards. 
JA  indicated  that  in 
-  promotion  matters,  the  Board's  statutory  authority  should  be 
limited  to  correcting military  records which  may  have  affected 
the  promotion  process  and  recommending  SSB  consideration  in 
appropriate cases. 
JA  stated  that  the  applicant  has -failed  to  present  relevant 
evidence of  any error or injustice warranting relief.  For the 
reasons outlined above, JA recommended the applicant's request be 
denied. 

A complete copy of this evaluation is appended at Exhibit G. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The applicant reviewed the advisory opinions and referenced the 
Soldiers and  Sailors Civil Relief Act.  Thus, the Board  should 
consider his case on merits as a time bar does not apply.  He has 
documented violation  of  AFR  36-10  -  the  OPRs  as written  claim 
feedback was given, but  it was not  - -   as his reporting officials 
clearly stated.  This alone should be an adequate basis to remove 
these reports as they are plainly in error or technically flawed. 
As each evaluator has agreed with replacement of these forms, he 
asks the Board to grant a full measure of relief and insert the 
OPRs which would have been written had his evaluators completed 
the  feedback  required  by  regulation. 
In  view  of  the 
documentation of error  (duty title in error, comments and overall 
recommendation  did  not  reflect  his  true  performance  based 
potential)  and  concurrence  by  his  senior  rater  to  amend  the 
contested PRF, he  asks the Board to  correct his  PRF to reflect 
the  recommendation he  would  have  received  had  it  not  been  for 
errors in the evaluation process.  As to illegal MLEB procedures, 
while  he  acknowledges  senior  raters  may  add  their  own 
'stratification comments,'  L e . ,  how  the  senior  rater believes 
the officer ranked among his review group, there is absolutely no 
provision  for  MAJCOM  indorsement  or 
'special'  promote 
recommendations.  He indicated that as the evidence demonstrated, 
the  'special'  promote  recommendations  effectively  'took  away' 
promotions  from  officers  who  received  legitimate  promote 
recommendations, there is no way his record can compete on a fair 
and equitable basis.  He therefore asks the Board to upgrade his 
PRF to a Definitely Promote recommendation. 

10 

AFBCMR  95-00486 

With  regard  to  defective  selection boards, he  stated  that  the 
selection boards which considered his file were held in violation 
of statute and DOD Directive.  He indicated that the requirements 
of  10  U.S.C.,  Section  616(c), are  unequivocal:  "A  selection 
board  may  not  recommend  an  officer  for  promotion  unless  the 
officer received the recommendation of a majority of the members 
of  the board."  The Air Force selection boards which considered 
his file did not allow board members either the knowledge of the  I 
officers recommended to make this decision nor did they allow a 
majority  of  the  members  of  the  board  to  form  the  required 
consensus.  Therefore, the 'results of  these boards  are without 
-  effect, and he asks the Board to set aside the results of these 
illegally  held  selection  boards. 
He  stated  that  Air  Force 
selection boards do not  comply with 10 U.S.C.  Section 617.  The 
results of the boards that considered his file for promotion did 
not  meet  the  minimum  requirements  of  law. 
In  fact,  the 
certification  process  used  by  Air- Force  selection  boards  is 
nothing more than an attendance roster!  As actions in violation 
of  law are without  effect, he  asks the Board  to  set aside  the 
nonselections he  incurred at  the  CY93  and  CY94  Major  Selection 
Boards.  He indicated that as the required separate boards were 
not  held,  he  was  denied  the  protection  envisioned  by  DODD 
1320.12.  He  stated that Air  Force  selection boards give  final 
recommendation  authority  to  the  board  president  -  not  the 
majority  of  the members of the board  as required by  law.  This 
contravenes  not  only  DODD  1320.12  requirements,  but  also  10 
U.S.C.,  Sections 616 and  617.  This violation  of  higher  level 
directives alone would justify set aside of his nonselections for 
major which he asks the Board to direct.  In view of the admitted 
and  deliberate  violation  of  1320.12  requirements, he  asks  the 
Board  to  direct  his  promotion  to  the  grade  of  major  as  if 
selected by the CY95 Major Board.  In view of the total disregard 
by  Air  Force officials for higher level directive and the  law, 
only the Board can intervene and grant full and fitting relief. 

He asks the Board to correct his record to reflect selection to 
major as if selected by the CY93 Major Board.  The basis for this 
request  is twofold:  (1) The Board  is required to provide  full 
and  fitting relief and direct promotion is within the authority 
of  the  Board;  and  (2) A  Special  Selection  Board  (SSB) cannot 
provide a full measure of relief. 

In support of his request, applicant submits a statement from the 
senior  rater  of  the  contested  PRF,  a  reaccomplished  PRF, 
statements from his former rating chain and additional documents 
associated with the issues cited in his contentions. 
In  response  to  HQ  AFPC/JA's  advisory  opinion,  he  stated  that 
again AFPC  has  dismissed  the  errors  in his  OPRs, but  at  least 
this time AFPC/JA acknowledged the errors on the OPRs could have 
led  to  an  error  on  the  PRF(s) .  He  indicated  that  while  AFPC 
argues  Air  Force  has  the  prerogative  to  use  virtually  any 
evaluation system it wants, AFPC/JA  ignores or misrepresents the 
real  issue  in  his  case:  The  illegal  top  promote  system.  He 

11 

AFBCMR  9 5 - 0 0 4 8 6  

stated that the plain language of the law is controlling, and the 
Board can easily test the Air Force procedures to determine if it 
meets the standards required by  law and directive.  Case law on 
the impact of procedural violations is equally clear.  He quotes 
from the Dovle v. United States court case.  The concept in Dovle 
has been confirmed again in Roane v. U.S. , a recently published 
decision from the Court of Federal Claims 
He stated that  the 
poane  court  confirmed  again  both  concepts  (compliance  with  I 
statute required, impact of procedural error) and found the Air 
Force selection board procedure was not  in compliance with law. 
He indicated that none of the AFPC advisories address Dovle.  In 
Dovle,  he  stated  that  the  court  provides  clear  unambiguous 
standards to determine the impact of  a procedural error in the 
selection board  process.  The court  has already determined  the 
errors in the Air Force process were  \\serious, substantial, and 
directly  related  to  the  purpose  and  functioning  of  selection 
boards. 
As  detailed  in  his  petition,  the  evidence  proves  major 
deficiencies  in  the  Air  Force  selection  board  process.  The 
evidence in his petition and rebuttal clearly proves: 
--The selection board  process does not  allow a majority  of  the 
members  of  the  board  to  find  that  each  officer  is  best  (and 
fully) qualified for promotion  (10 U.S.C./ Section 616). 
--The selection board process does not allow the certification of 
the list of officers (10 U.S.C., Section 617) as neither the list 
nor the purported report of proceedings exists when board members 
sign the attendance roster. 

- 

--The selection board process does not allow each selection board 
to compete a separate report as only one report was completed for 
a  session  of  several  selection boards  for  several  competitive 
categories (10 U.S.C., Section 617, DODD 1320.12). 
--The selection board process did not  allow SAF approval or the 
role of  the board  president  at  the boards which  considered his 
file  (DODD 1320.12). 
--The selection board process without  issuance, approval, or use 
of  the  required  Standard  Operating  Procedures  (SOPS) 
for 
selection  board  operations  and  administrative  support  thereof 
(DODD 1320.12). 
He has provided the Board with the tools by which they can easily 
test the Air Force process to determine if the problems with Air 
Force selection boards which considered his  file were  \\serious, 
substantial, and directly related to the purpose and functioning 
of  the  selection  boards." 
Each  test  will  drive  home  the 
conclusion the Air Force process was not only contrary to law and 
directive,  but  these  violations  went  to  the  heart  of  the 
selection process. 

12 

AFBCMR  95-00486 

He  stated  that  the  Board  can  see  the  errors  in the Air  Force 
process  are  certainly  'directly  related  to  the  purpose  and 
functioning  of  selection  boards"  -  the  failure  to  allow  a 
majority  of  the  members  of  the  board  to  find  each  and  all 
officer(s) recommended for promotion is certainly at the heart of 
the statutory requirements for selection boards.  AFPC provides 
no  information to prove  these requirements can be  met  and, in 
fact, the Board can easily see the process denies board members  4 
the opportunity to comply with 10 U.S.C.I  Section 616.  He stated 
that as in Roane, the Air Force selection boards which considered 
his file did, not allow board members either the knowledge of the 
-  officers recommended to make  this decision nor did they allow a 
majority  of  the  members  of  the  board  to  form  the  required 
consensus.  AFPC  does  not  dispute  a-s  few  as  two  members  can 
determine the select status of an officer -  all without knowledge 
of  other board members or the knowledge of  the majority of  the 
members of the board.  Therefore, the results of these boards are 
without  effect,  and  as  in  Roane,  his  "nonselections.  .  .are 
He  indicated  that  as  evidence  proves ,  the  required 
void. 
separate  boards  were  not  held.  Each  board  president  at  the 
selection boards, which considered his file, had duties which had 
never  been  prescribed  by  SAF. 
As  these  duties  clearly 
represented a violation of the due process guaranteed him by the 
directive.  He stated that Air Force selection boards give final 
recommendation  authority  to  the  board  president  -  not  the 
majority  of the members of  the board  as required by  law.  This 
contravenes  not  only  DODD  1320.12  requirements,  but  also  10 
U.S.C., Sections  616  and  617.  This violation of  higher  level 
directives alone would justify set aside of his nonselections for 
In  view  of  the  deliberate  violation  of  DODD  1320.12 
major. 
requirements, he  asks the Board  to direct  his promotion to the 
grade of major as if selected in-the-promotion zone. 

He  has  documented Air  Force  selection board  procedures  and  the 
deficiencies within the Air  Force selection board  process.  He 
has provided the Board with a complete and thorough discussion of 
the pertinent case law regarding procedural defects in selection 
boards. 
He  stated  that  the  Air  Force  evaluations  avoided 
discussion of the issues as indicated in his Brief  (page 25).  He 
further  indicated  that  \'the advisory  opinions  would  appear  to 
violate AFI 36-2603, paragraph 8.1.  He references the Roane case 
and asks the Board to direct his record be corrected to reflect 
that  he  served  on  continuous  active  duty  with  all  pay, 
entitlements  and  other  benefits  since  he  was  separated  as  a 
result of illegally held selection boards.  He believes that the 
evidence proves direct promotion is within the Board's  authority 
and that SSBs cannot provide a full, let alone fitting measure of 
relief.  He asks the Board to direct that his record be corrected 
to reflect selection for promotion to major as if selected by t h e  
CY93 Major Board. 

Complete copies of applicant's response is attached at Exhibit I. 

13 

AFBCMR  95-00486 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The  application  is  timely  only  as  it  pertains  to  the  OPR 
closing 9 May  1992  and the Promotion Recommendation Form  (PRF). 
‘The application pertaining  to  the OPRs  closing  9  May  1990  and 
9 May  1991 was not timely filed; however, it is in the interest 
of justice to excuse the failure to timely file the application. 

4 

3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice with 
regard  to  the  contested  Officer  Performance  Reports  (OPRs) 
closing 9 May  1990,  9 May  1991 and 9 May  1992.  After reviewing 
the  evidence  of  record,  we  are  persuaded  that  the  contested 
reports are not accurate assessments of applicant’s performance. 
In this respect, we note the statements provided from the rating 
chain  members  indicating  that,  due  to  the  absence  of  formal 
feedback,  the  applicant‘s  accomplishments  were  not  clarified 
prior  to  the  reports  being  finalized.  Hence,  the  reports  in 
question  are  inaccurate. 
Based  on  the  statements  from  the 
evaluators of the contested reports and on the fact that a formal 
feedback did not  occur as required by  the governing regulation, 
we recommend the contested reports be declared void and replaced 
with the reaccomplished OPRs provided.  In addition, the closing 
dates on the May 1990 and May 1991 reports should be corrected as 
indicated below. 

4.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice with 
regard to the Promotion Recommendation Form  (PRF) for the CY93B 
Major  Board.  We  are persuaded by  the  senior rater‘s statement 
that the contested PRF is inaccurate.  In this respect, we  note 
that  the  senior  rater  specifically  recommended  that  the  duty 
description be  corrected  to  accurately  reflect  the  applicant’s 
duties.  The reason for the duty description not  being updated 
was due to the reorganization of the directorate.  In view of the 
foregoing, we recommend that, instead of replacing the contested 
PRF  as  the  applicant  requested,  it  should  be  corrected  by 
substituting  the  comments  contained  in  Section  111,  Job 
Description, of  the PRF in question with the comments contained 
in Section I11 of the reaccomplished PRF. 
5.  We  do  not  find  the  evidence  presented  supports  favorable 
consideration  of  the  applicant‘s  request  for  a  “DPf‘ 
Other  than  his  own 
recommendation  on  the  contested  PRF. 
assertions, we have seen no evidence by the applicant which would 
lead us to conclude that had his corrected record been available 
during the processing of the PRF, when comparing his record with 
those  of  his  peers,  such  a  recommendation  would  have  been 
awarded. 

14 

AFBCMR  95-00486 

6 .   As a consequence of  the corrections the applicant's  records 
we propose, his selection record was  inaccurate at  the time he 
was considered for promotion to the grade of major by  the CY93B 
and  CY94A  selection  boards. 
We  have  noted  the  applicant's 
requests  that  his  nonselections  for promotion  to  the  grade  of 
major  be  set  aside  and  for  direct  promotion  to  the  grade  of 
major. 
However,  we  do  not  believe  such  action  would  be 
.appropriate  since  the  applicant's  eligibility  for  promotion 
consideration by the above cited boards is not in question.  We 
believe  that  a  duly  constituted  selection board,  applying  the 
complete promotion criteria, is in the most advantageous position 
-  to render this vital  determination, and that  its prerogative to 
do so should only be  usurped under extraordinary circumstances. 
After  reviewing  the  available  evidence  and'  the  applicant's 
record, we are unpersuaded that the duly constituted S S B s ,   when 
comparing his  corrected  record with  those  of  his  peers, would 
have  insufficient  evidence  of  the-applicant's  performance  and 
demonstrated  potential  on  which  to  base  reasonable  decisions 
concerning  the  impact  the  uncorrected  record  had  on  his 
opportunities for promotion.  Therefore, it  is our opinion that 
the most appropriate and fitting relief is to place the corrected 
record before  Special Selection Boards  (SSBs) for consideration 
by  the  CY93B  and  CY94A  Major  Selection Boards.  Based  on  the 
foregoing, we  conclude  that  there  is  no  basis  upon  which  to 
recommend  favorable  action  on  the  applicant's  requests  to  set 
aside his nonselections for promotion to the grade of major and 
for direct promotion to the grade of major. 

7.  The applicant's numerous assertions concerning the statutory 
compliance  of  central  selection  boards,  the  legality  of  the 
promotion recommendation process, and the legality of the Special 
Selection Board  (SSB) process, are duly noted.  However, we  do 
not  find  these  assertions, in  and  of  themselves, sufficiently 
persuasive to override the rationale provided by  the  respective 
Air Force offices.  Therefore, we agree with the recommendations 
of  the  appropriate  Air  Staff  offices  and  adopt  the  rationale 
expressed  as the basis  for our decision that  the  applicant has 
failed to sustain his burden of establishing that he has suffered 
either an error or an injustice. 

8.  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. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT be corrected to show that: 

a.  The Company Grade Officer  Performance Reports, AF  Forms 
707B,  rendered for the periods  10 May  1989 through 9 May  1990, 
10 May  1990  through  9 May  1991  and  10 May  1991 through  9 May 

15 

AFBCMR  95-00486 

, 

1992,  be  declared  void  and  removed  from  his  records  and  the 
attached  reaccomplished  Officer  Performance  Reports  (OPRs) be 
accepted for file in their place. 

b.  The closeout dates on the reaccomplished OPRs be changed 
from 10 May  1990  to  9 May  1990  and  from 10  May  1991  to  9 May 
1991. 

c.  The comments contained in Section 111, Job Description, 
of the Promotion Recommendation  (PRF), AF Form 709, prepared for 
consideration  by  the  Calendar  Year  1993B  Major  Board,  which 
-  convened on 6 December 1993,  be  deleted from that document and 
the  comments  contained  in  Section  I11  of  the  attached 
reaccomplished PRF be substituted in their place. 

4 

It is further recommended that he be considered for promotion to 
the grade of  major by  Special Selection Boards  (SSBs) for the 
Calendar  Year  1993B  and  Calendar- Year  1994A  Central  Major 
Selection Boards, with inclusion of the reaccomplished OPRs and 
the corrected PRF, and, if he  is selected for promotion to the 
grade of major, the results of the particular Special Selection 
Board be made available to the Air Force Board for Correction of 
Military  Records at  the  earliest  practicable  date  so  that  all 
necessary and  appropriate actions may  be  taken consistent with 
his selection for retroactive promotion. 

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

All  members voted to correct the records, as recommended. 
following documentary evidence was considered: 

The 

Exhibit A.  DD Form 149, dated 1 Feb 95, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, HQ AFMPC/DPMAJEP, dated 1 Mar 95. 
Exhibit D.  Letter, HQ AFMPC/DPMAJEB, dated 28 Mar 95. 
Exhibit E.  Letter, HQ AFMPC/DPMAB, dated 4 Apr 95. 
Exhibit F.  Letter, HQ AFPC/DPPP, dated 20 Nov 95. 
Exhibit G.  Letter, HQ AFPC/JA, dated 8 Apr 96. 
Exhibit H.  Letters, SAF/MIBR, dated 4 Dec 95 and 26 
Exhibit I.  Letters from applicant, dated 15 Dec 95, 

and 15 Dec 96, w/atchs. 

Sep 96. 
w/atchs, 

A+ 

16 

AFBCMR  95-00486