AIR FORCE BOARD FOR CORRECTION OF MILITARY 

RECORD OF PROCEEDINGS 

EFT3 1999 

IN THE MATTER OF: 

DOCKET NUMBER:  95-01269 

COUNSEL:  NONE 
HEARING DESIRED:  YES 

APPLICANT REOUESTS THAT: 
His nonselection for promotion to the grade of major by the CY94A 
Central Major Board, which convened on 22 Aug 94, be set aside. 
The  Promotion  Recommendation  (PRF), AF  Form  709, prepared  f o r  
consideration by the CY94A Central Major Board, which convened on 
22 Aug 94, be declared void and removed from his records. 
He be directly promoted to the grade of major as though selected 
by the CY94A Central Major Board, which convened on 22 Aug 94. 
By amendment, he be reinstated to active duty, with return of all 
pay, allowances, and entitlements which were denied to him. 

"Promote, 

APPLICANT CONTENDS THAT: 
The  Management  Level  Evaluation  Board  (MLEB)  used  illegal 
procedures in the PRF process.  MLEBs may award only "Definitely 
and  \\DO  Not  Promote  This  Board" 
Promote, 
recommendations.  However, MLEBs  in  nearly  every major  command 
also  awarded  "command indorsements. 
This was  contrary to  the 
governing regulation  (AFR 36-10) and not uniformly applied.  As 
nearly all the commands used some type of command indorsement for 
the  "special" promote  recommendations, the  impact  on  officers, 
who, like himself, received "legitimate" promote recommendations 
was  indeed severe.  Since  the  '\special promote  recommendations 
effectively  "took  away" promotions  from  officers  who  received 
legitimate "promote" recommendations, there was no way his record 
could compete on a fair and equitable basis. 
His  senior  rater was  not  familiar with  his  daily  performance. 
The result was a  PRF  that omitted several major  accomplishments 
which were documented elsewhere in his record. 
The  selection  boards  which  considered  his  record  was  held  in 
violation of statute and Department of Defense  (DOD) directive. 

An  SSB  cannot  resolve his  promotion  status.  Not  only  are  the 
benchmark  records  tainted  by  the  illegalities  of  the  original 
boards,  the  scoring  procedure,  itself,  is  arbitrary  and  - 
capricious,  as  it  imposes a  higher  standard  for  SSB  selection 
than for original board selection. 
In  support  of  his  appeal,  the  applicant  provided  a  detailed 
personal statement and other documents associated with the matter 
under review. 

STATEMENT OF FACTS: 
Applicant was appointed a second lieutenant, Regular Air  Force, 
on 1 Jun 83 and was voluntarily ordered to extended active duty 
on the same date.  Information extracted from the Personnel Data 
System  (PDS) indicates that the applicant is no longer on active 
duty.  His  Total Active  Federal Military  Service  Date  (TAFMSD) 
was 26 Jun 82. 

Applicant's OER/OPR profile since 1984 follows: 

PERIOD ENDING 

EVALUATION 

30 Nov 84 
31 May 85 
1 Dec 85 
1 Dec 86 
1 Dec 87 
13 May 88 
'  15 Dec 89 
15 Dec 90 
15 Dec 91 
15 Dec 92 
15 Dec 93 
15 Dec 94 

1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
Training Report 
Training Report 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 

# 
# #  
#  Top Report -  CY94A  (22 Aug 94) Major Board. 
# #   Top Report - CY95A  (5 Jun 95) Major Board. 

AIR FORCE EVALUATION: 
The  Evaluation  Boards  Section,  AFMPC/DPPPEB,  reviewed  this 
application and recommended denial.  DPPPEB noted the applicant's 
allegations  that  he  was  unable  to  compete  fairly  for  either  a 
"Definitely  Promote" or  "Top  20%''  statement  at  the  Air  Force 
Materiel  Command  (AFMC) evaluation board,  that his  senior rater 
was  not  familiar with  his  daily  performance;  and  that  illegal 
information was used  at  the MLEB  which  led  to his  nonselection 
for promotion to the grade of major by the CY94A Major Board. 

2 

AFBCMR 95-01269 

, 

DPPPEB  indicated  that  with  the  diverse  range  of  assignment 
locations and  organizational  configurations,  it  is  not  at  all 
uncommon  for a promotion candidate to have  a  senior rater they 
have not met or had personal contact with.  This does not violate 
the  spirit of  the  Officer  Evaluation  System  (OES).  Air  Force 
directives  do  not  require  the  senior  rater  to  have  personal 
knowledge of the ratee.  Although the governing regulation states 
that the senior rater will be  knowledgeable of the ratee's  most 
recent  duty  performance,  this  information may  be  obtained  from 
the record of performance, subordinate supervisors, or reliable 
sources of information.  They have reviewed the contested PRF and 
determined that it was completed according to the directive and 
was in compliance with all regulatory requirements. 
According  to DPPPEB, there was no evidence presented to support 
the allegations of "illegal" information being considered in the 
PRF  process.  Also, there was no official evidence presented to 
support  allegations  of  '\special" promote  recommendations being 
used to identify officers who should be selected for promotion by 
the Central Selection Board.  There was no such rating system as 
a "special promote."  However, in an effort to discriminate among 
officers  who  received  "Promote" recommendations,  some  senior 
raters and MLEBs employed a technique not addressed in AFR  36-10 
in which they used comments such as "my top promote" or "if I had 
one  more  'Definitely  Promote,'  he  would  get  it"  and  other 
comments to convey to the Central Selection Board how they rank- 
ordered officers.  Promotion recommendations are clear signals to 
the  promotion boards  about  the  officers'  duty performance,  and 
how  these  officers  compare  to  their  peers  within  a  clearly 
defined organization.  It was never illegal for senior raters or 
MLEBs  to  rank order promotion eligibles.  The  recent  review of 
the' OES revalidated this practice; however, MLEBs were precluded 
from  rank  ordering  eligibles  to  eliminate  any  negative 
perceptions that existed from the field. 
In  DPPPEB's  view,  the  applicant  has  not  provided  any  evidence 
that he was treated unfairly by the OES. 
A complete copy of the DPPPEB evaluation is at Exhibit C. 
The  Selection  Board  Secretariat,  AFPC/DPPB,  reviewed  this 
application  and  provided  an  advisory  opinion  addressing  the 
applicant's  contentions that the selection board which considered 
his  record  was  held  in  violation  of  statute and  Department  of 
Defense  (DOD)  directive,  and  that  the  benchmark  records  are 
tainted and the SSB scoring system is arbitrary and capricious. 
In summary, DPPB indicated that the application contained faulty 
logic,  incorrect  statements,  accusations  without  merit, 
directives, statutes, and  regulations taken out of context, and 
was fully unfounded. 
A complete copy of the DPPB evaluation is at Exhibit D. 

3 

AFBCMR 95-01269 

The BCMR  and  SSB Section, AFPC/DPPPA, reviewed this application 
and recommended denial.  DPPPA concurred with the assessments of 
DPPPEB  and  DPPB.  DPPPA  indic-ated that  while  it may  be  argued 
that  the  contested  PRF  was  a  factor  in  the  applicant's 
nonselection,  there  was  no  clear  evidence  that  it  negatively 
impacted his promotion opportunity.  Central boards evaluate the 
entire officer selection record  (OSR)  Therefore, they are not 
convinced the contested PRF  was the sole cause of the applicant's 
nonselection. 
According  to  DPPPA,  an  evaluation  report  is  considered  to 
represent  the  rating  chain's  best  judgment  at  the  time  it  is 
Once  a  report  is  accepted  for  file,  only  strong 
rendered. 
evidence to the contrary warrants correction or removal from an 
individual's  record.  The burden of proof  is on the applicant. 
He has not substantiated the contested report was not rendered in 
good faith by all evaluators based on knowledge available at the 
time. 
In  DPPPA' s  view,  insufficient  relevant  evidence  has  been 
presented  to  demonstrate  the  existence  of  probable  error  or 
injustice  in  regard  to  the  applicant's  request  for  direct 
promotion to the grade of major.  An officer may be qualified for 
promotion, but, in the judgment of a selection board-vested with 
discretionary authority to make the selection-he may not be the 
best  qualified  of  those  available  for  the  limited  number  of 
promotion  vacancies.  Absent  clear-cut  evidence  the  applicant 
would have been a selectee by the P0494A board, DPPPA believes a 
duly  constituted board  applying the complete promotion criteria 
is  the  most  advantageous  position  to  render  this  vital 
determination.  The board's  prerogative  to do  so should not be 
usukped  except  under  extraordinary circumstances.  Further,  to 
grant  a direct promotion would  be  unfair  to  all other officers 
who  have  extremely  competitive  records  and  also  did  not  get 
promoted. 
Other  than  his  own  opinions,  the  applicant  has 
provided  no  substantiation for his  allegations.  The burden  of 
proof is on him.  DPPPA does not support direct promotion. 
A complete copy of the DPPPA evaluation, with  attachment, is at 
Exhibit E . 

APPLICANT'S  REVIEW OF AIR FORCE  EVALUATION: 
In his response, the applicant indicated that the evidence proves 
that his PRF was based on an incomplete record and was illegally 
precluded from containing key words which would have enhanced its 
quality;  that  his  PRF  should  be  upgraded  to  a  "Definitely 
Promote" because it is the only recommendation which would allow 
his record to compete on a fair basis with officers who received 
illegal "Top Promote" recommendations; that  the selection board 
process did not comply with statute; that an SSB cannot provide 
him  full  and  fitting  relief;  and,  that  a  direct  promotion  is 

4 

AFBCMR 95-01269 

. 

within the authority of the AFBCMR to recommend.  Therefore, he 
should be directly promoted to the grade of major as if selected 
to the CY94 Major Board.  (See-Exhibit G.) 

ADDITIONAL AIR FORCE EVALUATION: 
The Staff Judge Advocate, AFPCIJA, reviewed this application and 
JA  indicated  that,  with  respect  to  the 
recommended  denial. 
alleged  incomplete  PRF,  they  could  discern  no  legal  issue  and 
deferred to the other advisories.  According to JA, the rest of 
the applicant's  brief presented  arguments familiar to the Board 
attacking as illegal various aspects of the Air Force's  promotion 
recommendation  and  promotion  board  procedures. 
JA  noted  the 
applicant's  claim  that  he  was  the  victim  of  illegal  MLEB 
procedures;  that  is,  he  challenged  what  he  believed  to  be 
illegal,  command  indorsement  special  promote  recommendations- 
alleging 
stratification  of  "promote" 
recommendations occurred in violation of the existing regulation. 
In particular, the applicant stated that the "top promote" system 
was  unauthorized, the  system was  not  uniformly applied, and  he 
was prejudiced by its use.  In JA's  view, the applicant failed to 
present  relevant evidence of  any  error  or  injustice warranting 
relief . 
A complete copy of the JA evaluation is at Exhibit H. 

system  where 

a 

I 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
In  his  response  to  the  JA  advisory  opinion,  the  applicant 
indicated  that,  although  it  addressed both  the  illegal Officer 
Evaluation  System  (OES) and  illegal promotion board  aspects  of 
his case, it did not provide an analysis of either.  He indicated 
that the unrefuted evidence proves  he was  harmed by  an  illegal 
top promote system.  The unrefuted evidence proves he was harmed 
by  a central selection board process held contrary to law.  The 
evidence proves an SSB  offers no cure because the combination of 
the errors precludes relief.  He asks the Board  to correct his 
record to reflect selection to the grade of major as if selected 
by the CY94 Major Board, and, direct reinstatement to active d u t y  
with return of all pay, allowances, and entitlements which were 
denied to him as a result of the illegal activities in the AFMC 
evaluation system and the AF central promotion selection system. 
Applicant's  complete response and additional documentary evidence 
are  at  Exhibit  J. 
In  addition,  the  applicant  provided  a 
subsequent response, dated  18 Oct  97, with additional supporting 
documentation, which is at Exhibit K. 

5 

AFBCMR  95- 01269 

The applicant has exhausted all remedies provided by existing 

THE BOARD CONCLUDES THAT: 
1. 
law or regulations. 
2.  The application was timely filed. 
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error  or  injustice.  The 
applicant's complete submission was thoroughly reviewed and his 
contentions  regarding  the  contested  PRF,  his  consideration  for 
promotion by the selection board  in question, and  the promotion 
process in general, were duly noted.  However, we do not find the 
applicant, s  assertions,  in  and  of  themselves,  sufficiently 
persuasive to override the rationale provided by  the Air  Force 
offices of primary responsibility (OPRs)  concerning these issues. 
Therefore, in the absence of sufficient evidence to the contrary, 
we  agree with  the  recommendations of  the  OPRs  and  adopt  their 
rationale 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. 
Accordingly,  we  find  no 
compelling basis to recommend granting the relief sought in this 
application. 
4.  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 o u r   understanding of  the issues 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  14  Oct  98,  under  the  provisions  of  A F I  
36- 2603: 

Mr. Thomas S.  Markiewicz, Panel Chair 
Mr. Charles E. Bennett, Member 
Ms. Martha Maust, Member 

6 

AFBCMR 95-01269 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B o  
Exhibit C . 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I . 
Exhibit J. 
Exhibit K. 

DD 
Form 
licai 
APP 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 

149, dated 3  Apr 
95,  w/atch 
S. 
It's Master Person 
.ne1 Record 
S. 
95 . 
AFMPC/DPPPEB, dat 
ed 12 Jul 
AFPC/DPPB, dated 
15 Apr 96. 
. 
AFPC/DPPPA, dated 
19 Apr 96 
SAF/MIBR, dated 6 
Mav 96. 
applicant , undated, w/atchs 
AFPC/JA, dated 9 Apr 97. 
AFBCMR, dated 24  Apr 97. 
applicant, dated 17 Jul 97, w/atchs. 
applicant, dated 18 Oct 97, w/atchs. 

/ 

c 

THOMAS S.  MARKIEWICZ 
Panel Chair 

7 

AFBCMR 95-01269