AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 94-03711 
COUNSEL: Controlled Equity, INC. 

HEARING DESIRED: Yes 

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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. 

THAT: 

APPJiICANT CO-DS 
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  f o r   each 
competitive  category  was  not  granted.  10  United  States  Code 
(USC) Sections 616 and 617 require the majority of board members 
to recommend and certify both, the officer and the officers best 
qualified.  The operation of the Air Force selection boards did 
not  comply with  Sections 616 and  617.  Based  on these  illegal 
actions,  he  requests  that  his  promotion  nonselections  be  set 
aside and correction of  his record to reflect continuous active 
duty until the first day of the month  following the decision on 
this petition. 
In support of the appeal, counsel submits a five page brief, with 
one attachment entitled  "Documentation of Dishonesty, Deceit and 
Deception. 

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

Applicant was honorably discharged in the grade of staff sergeant- 
Applicant  was 
on  7  February  1973  to  accept  a  commission. 
commissioned a  second  lieutenant, Reserve  of  the Air  Force on 
8 February  1973  and  entered  extended  active  duty. 
He  was 
promoted to the grade of temporary captain effective 8 February 
1977. 

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Applicant  was considered and not  selected for promotion to the 
grade of  major by  the Calendar Years 1984, 1985, 1986A, 1986B, 
1987, 1988, 1989, and  1991  (CY85/86/87/88/89/91) Central  Major 
Selection Boards.  There was no board in 1990. 
OER/OPR profile since 1974 follows: 

16 JAN  74 
16 JUL  74 
16 MAR  75 
29 FEB 76 
31 AUG 76 
2 JAN  77 
31 OCT 77 
28 FEB 78 
27 OCT 78 
1 JUN 79 
1 JUN  80 
4 J A N   81 
27 FEB 81 
27 FEB 82 
12 DEC 82 
31 JUL 83 
31 JUL  84 
20 MAY 85 
7 MAY 86 
7 MAY 87 
7 MAR  88 
31 J U L   88 
7 MAY 89 
7 MAY 90 
7 SEP 91 

8-3 
8-3 
8-3 
2-2-3 
3-3-3 

Abbreviated Report 
Abbreviated Report 

3-x-3 

Education/Training Report 

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

1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 

Meets Standards 
Meets Standards 
Meets Standards 

On 3 0   November 1992, applicant was relieved from active duty in 
the grade of captain and on 1 December 1992 retired.  He served 
20 years and 21 days of active duty. 

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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-lin-k _. 
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 
perception.  However, perceptions  of  the  latter spread  quickly 
and ultimately could not be ignored.  Air Force senior leadership 
addressed  these  perceptions  because  it  became  evident  the 
controlled OER  system  negatively  influenced  the  officer  corps' 
morale and motivation.  The controlled rating concept met most of 
its intended goals.  As with any evaluation system used by  any 
large organization, regardless of  how  effective  the  system may 
work, concern for morale will ultimately cause the organization 
to  reassess  such  a  system periodically  to  ensure  the  benefits 
don't outweigh the costs.  The Air Force concluded that a change 
was desirable and in 1978, the Chief of Staff agreed to terminate 
the rating control limitations.  However, these changes were not 
made  because  the  system operated  illegally or  treated officers 
unjustly.  Applicant presents no conclusive evidence to support 
his allegations of unfair treatment and the case should be denied 
because of  the elapsed time between this appeal and the alleged 
wrong, and  secondly, because  applicant has  failed to prove  the 
existence of any error or injustice. 
A  complete copy of the evaluation is attached at Exhibit C. 
The Chief, Selection Board Secretariat, AFMPC/DPMAB, reviewed the 
application regarding Defective Selection Boards  and  recommends 
denial.  Although counsel challenges the operating procedures of 
promotion  boards  including  the  panel  concept  used  by  the  Air 
Force, the Air Force has used the panel concept for many years in 
conducting  selection boards  and  the  procedure  was  reviewed  as 
late as February 1992 by  HQ USAF/JAG and AFMPC/JA  in May  1994. 
The panel concept has safeguards to insure an equal distribution 
of the quality spectrum of records to each panel.  As each panel 
scores its records, an order of merit  (OOM) is formed.  It is the 
board  president's responsibility  to  review  the  OOMs  to  insure 
consistency of  scoring on each panel  and consistency of quality 
among  the  panels.  Without  exception,  the  quality  of  records 
always has been  identical at  the same percentage  level on each 
OOM.  While  it  is  true  that  the  board  members  do  not  see  a 
complete select list, under the panel concept one panel does not 
have to know what the other panels have done.  The panel's task 

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consider 

for 

have to know what the other panels have done.  The panel's task 
is to align their records in an OOM and break ties when the quota 
runs out at a score category that has more records in it than the 
quota allows to be promoted, commonly known as the  "gray zone." 
In  resolving  gray  zone  ties,  the  panel  understands  that  all 
records scoring higher than the lowest select on its OOM are also 
selects.  In the previously referenced February 1992 review, the 
USAF/JAG also reviewed  10 USC Section 616(c) and  10 USC  6.17(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:  ''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 USC  617 may  be  consolidated into a single package  for 
submission as prescribed under 10 USC 618." 
A complete copy of the evaluation is attached at Exhibit D. 
The  Chief, Appeals  and  SSB  Branch, AFMPC/DPMAJA,  reviewed  the 
application and recommends denial on the basis of timeliness; if 
considered,  deny  due  to  lack  of  merit.  They  have  analyzed 
applicant's  record  and  believe  it  speaks  for  itself. 
Specifically, applicant was  eliminated  from undergraduate pilot 
training.  The  first  reports under the previous  rating systems 
were  marked  as  Ifdemonstrates  capabilities  for  increased 
responsibility, 
of 
contemporaries, If  with front side mark  downs  (FSMDs) .  The rater 
and additional rater on the February 1976 report marked two while 
the  reviewer marked  three, with  FSMDs.  The August  1976 report 
The  January  1977  report  was 
was  marked  three  with  FSMDs. 
abbreviated with FSMDs.  Applicant was promoted to captain.  The 
rater and reviewer on the October 1977 report marked  three with 
FSMDs.  The  February  1978  report was  abbreviated, with  FSMDs. 
The rater and reviewer on the October 1978 report marked two with 
FSMDs.  The June 1979 report was marked two straight across, with 
FSMDs.  The  June  1980 report was  marked  one with  FSMDs.  The 
majority  of  applicant's peers  received  "firewalll' 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. 

advancement 

ahead 

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

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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 
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. 

Counsel  reviewed  the  Air  Staff  evaluations  and  reiterates his 
position  that  applicant  was  the  victim  of  a  systemically 
inequitable  and  illegal  evaluation  system. 
The  error  was 
compounded  by  the  actions  and  inactions  of  officer  selection 
boards that violated applicant's legal and regulatory entitlement 
to be  considered for promotion on a  fair and  equitable  basis. 
Applicant was intentionally uninformed and misinformed concerning 
the  fairness  and  equity  of  the  controlled  system/selection 
boards. 
Counsel  states  that  promotability  is  not  the  issue 
before the AFBCMR, rather it is the removal of the nonselections 
for promotion and the retirement/separation.  The provisions of 
law and directive were violated by the Air Force selection board 
procedures  used  when  applicant  was  considered  for  promotion. 
Applicant asks the Board to set aside the results of the tainted 
selection  boards. 
Applicant's  timely  and  legal  access  to 
information he  was  entitled to by  law was violated by  numerous 
Air Force acts of fraudulent concealment.  Fraudulent concealment 
circumvents an Air Force time bar defense. 
In support of applicant's request, counsel submits an eight page 
rebuttal with five attachments. 

Counsel's complete response is attached at Exhibit I. 

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THE BOARD CONCJIUDES THAT 
1.  The applicant has exhausted all remedies provided by existing 
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. 
Applicant's  numerous  contentions  concerning  alleged  inequities 
and regulatory violations of the controlled Officer Effectiveness 
Report  system  and  statutory  compliance  of  central  selection 
boards  are  duly  noted. 
However,  we  do  not  find  these 
uncorroborated  assertions,  in  and  by  themselves,  sufficiently 
persuasive to override the  rational provided  by  the Air  Staff . 
Therefore, we agree with the recommendation of the Air Staff and 
adopt the rational expressed as the basis for our conclusion that 
the applicant  failed  to  sustain his burden of  establishing the 
existence of either an error or an injustice warranting favorable 
action on his requests. 
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  our  understanding  of  the  issue(s) 
involved.  Therefore,. the request for a hearing is not favorably 
considered. 

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 18 September 1995 under provisions of  AFR 
31-3: 

Mr. Walter A. Willson, Panel Chairman 
Mr. Gregory H. Petkoff, Member 
Ms. Martha Maust, Member 

The following documentary evidence was considered: 

Exhibit A.  DD Form 1 4 9 ,   dated 2 6   Aug 94,  w/atch. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFMPC/DPMAJE, dated 13 Dec 9 4 .  
Exhibit D.  Letter, AFMPC/DPMAB, dated 1 9   Dec 94. 

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Exhibit E.  Letter, AFMPC/DPMAJA, dated 3 Jan 95. 
Exhibit F.  Letter, AFMPC/DPMARSP, dated 15 Feb 95. 
Exhibit G.  Letter, AFMPC/JA, dated 13 Apr 95. 
Exhibit H.  Letter, AFBCMR, dated 8 May 95. 
Exhibit I.  Counsel's response, 3 Jul 95. 

WALTER A. WILLSON 
Panel Chairman 

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