F' 

..,~ 

. 

t i 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 94-03709 
COUNSEL: Controlled Equity, INC. 
HEARING DESIRED: Yes 

-- 

Nov  0 9 1995 

~. 

1.  Set aside all non-selections for promotion that he received. 
2.  His record be corrected to reflect continuous active service 
until the first day of the month following the Board's decision. 
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. 

DS 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 
j o t  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  IIDocumentation of Dishonesty, Deceit and 
Deception. 

Applicant's complete submission, with attachment, is attached at 
Exhibit A. 

-

.

 .

*: 
Applicant  was  commissioned a second  lieutenant ,  Reserve  of  the 
Air Force on 22 February 1958 and entered extended active duty on 
25 May  1958.  He was promoted  to the  grade  of  permanent major 
effective 25 May 1972. 
Applicant  was  considered and not  selected for promotion to  the 
grade of  lieutenant colonel by  the Fiscal Years 1975, 1976, and 
1977  (FY75/76/77) and  the  Calendar  Years  1976, 1977, and  1978 
(CY76/77/78)  Temporary  Lieutenant  Colonel  Boards. 
He  was 
considered  and  not  selected  for  promotion  to  the  grade  of 
lieutenant  colonel  by  the  CY78  and  CY79  Permanent  Lieutenant 
Colonel Boards. 
OER/OPR profile since 1974 follows: 

- 

-

 

.u T 

5 
5 
31 
21 
31 
31 
2 

JUL 74 
JUL  75 
DEC 75 
JUN 76 
DEC 76 
DEC 77 
JUL 78 

9-4 
9-4 
3-x-3 

2-X-3 
2-x-2 

Abbreviated Report 

Abbreviated Report 

On 30 
grade 
He served 2 1  years, 1 month,- and 6 days of active duty. 

June 1979 ,  applicant was relieved from active duty in the 
of major and-on 1 July 1980 retired for length of service. 

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 
between  time-in-grade  (TIG) and  ratings, management  understood 
that as officers approach promotion eligibility for each grade, 
the percent of top block ratings usually increase.  Today, as it 
was  16 years ago, it  is reasonable to expect  that more  senior, 
experienced,  and  mature  officers  in  competition  with  less 
experienced contemporaries would  receive a  higher percentage of 
top block ratings.  The ratings awarded to an officer is far more 
likely  a  function  of  actual  performance  rather  than  the  TIG 

2 

c 

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 -0rganizatio-n _ .  
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 alleqations of unfair treatment and the case should be denied 
because Gf 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/DPMAE3, reviewed the 
application regarding Defective Selection Boards  and  recommends 
denial.  Although counsel challenges the operating procedures of 
promotion  boards  including  the  panel  concept  used  by  the  Air 
Force, the Air Force has used the panel concept for many years in 
conducting  selection  boards  and  the  procedure  was  reviewed  as 
late as February 1992 by  HQ USAF/JAG and AFMPC/JA  in May  1994. 
The panel concept has safeguards to insure an equal distribution 
of the quality spectrum of records to each panel.  As each panel 
scores its records, an order of merit  (OOM) is formed.  It is the 
board  presidentls  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.Il 
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 
the promotion boards were conducted in violation of Department of 
Defense Directive (DoDD) 1320.9 which required separate selection 
boards for each competitive category.  However, other portions of 
DODD  1320.09  stated:  tlSelection boards  convened  for different 
competitive categories or grades may  be  convened concurrently,Il 
and When more than one selection board is convened to recommend 
officers  in  different  competitive  categories  or  grades  for 

3 

capabilities 

for 

as 

I' demonstrates 

promotion, the written reports of the promotion selection boards 
under 10 USC  617 may be  consolidated into a single package  for 
submission as prescribed under 10 USC 618.l' 
A complete copy of the evaluation is attached at Exhibit D. 
The  Chief, Appeals  and  SSB  Branch, AFMPC/DPMAJA,  reviewed  the 
application and recommends denial on the basis of timeliness; i f .  . 
considered,  deny  due  to  lack  of  merit.  They  have  analyzed 
applicant's  record  and  believe  it  speaks  for  itself. 
Specifically, applicant was rated using the previous evaluation 
system.  As a lieutenant and junior captain, he was consistently 
marked 
increased 
responsibility, consider for advancement ahead of contemporaries1' 
versus  "outstanding  growth  potential  based  on  demonstrated 
performance,  promote  well  ahead  of  contemporaries.Il 
His 
controlled  report  history  is  as  follows:  on  the  July  1975 
report, the rater and reviewer marked three with front side mark 
downs (FSMDs); the June 1976 report was abbreviated; the December 
1976 report reflected two by the rater and three by the reviewer, 
with  FSMDs;  the  December  1977  report  reflected  two  from  both 
rater  and  reviewer  with  FSMDs;  and  the  July  1978  report  was 
The  majority  of  applicant s  peers  received 
abbreviated. 
llfirewallll reports  with  the  front  marked  all  the  way  to  the 
right.  Also  the controls on the rating were only on the final 
indorser.  It is doubtful that applicant would have been promoted 
without  the  control  OERs  in  his  records.  Applicant  has  not 
established the  controlled OER  system  was  illegal  or  that  the 
controlled  OERs  were  the  sole  cause  of  his  nonselection  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. 
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 

4 

their  opinion  that  applicant,  on  the  merits,  has  failed  to 
present  relevant evidence of  any  error or  injustice warranting 
relief. 
A complete copy of the evaluation is attached at Exhibit G .  

. , 

-- 

APPJiTCANT'S REVIEW ~ O F A I R V A L U A T I O N :  
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 
f o r   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. 

FTNDINGS A N D J r T J S  JONS OF THE BOABIT 
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. 
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 

5 

plausible reason for delay in filing, 
that the record raises issues of error 
resolution on the merits at this time. 
that  it would not  be  in the  interest 
untimely filing of the application. 

and we  are not persuaded 
or injustice which require 
Accordingly, we conclude 
of  justice to  excuse the 

documented and it has not 
3.  The applicant's case is adequately 
been  shown that  a  personal  appearance with  or without  counsel 
will  materially  add  to  our  understanding  of  the  issue(sJ  . 
involved.  Therefore, the request for a hearing is not favorably 
considered. 

BO-: 

DECTSTON OF 
The application was not timely filed and it would not be in the 
interest  of  justice  to  waive  the  untimeliness. 
It  is  the 
decision of  the Board, therefore, to reject  the  application as 
untimely. 

The following members of the Board considered this application in 
Executive Session on  18 September  1 9 9 5   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: 
DD Form 149,  dated 2 6   Aug, w/atch. 
Applicant's Master Personnel Records. 
Letter, AFMPC/DPMAJE, dated 13 Dec 9 4 .  
Letter, AFMPC/DPMAB, dated 1 9   Dec 9 4 .  
Letter, AFMPC/DPMAJA, dated 3 Jan 9 5 .  
Letter, AFMPC/DPMARSP, dated 1 5   Feb 95. 
Letter, AFMPC/JA, dated 13 Apr 9 5 .  
Letter, AFBCMR, dated 8 May 9 5 .  
Counsel's response, 3  Jul 95. 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 

WALTER A. WILLSON 
Panel Chairman 

6