AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET "4BER:  94-10292 
COUNSEL: Controlled Equity, INC. 
HEARING DESIRED: YES 

c  MAY  2  3  1995 

1.  Set aside all nonselections to the grade of major. 
2.  His record be corrected to reflect continuous active service 
as a a captain from the date he was separated as a result of his 
nonselection to the grade of major. 
3 .   His record be corrected to reflect retirement in the grade of 
captain  the  first day  of  the  month  after  the  decision of  his 
application is announced. 
4.  He  receive  any  and  all  back  pay,  allowances,  and 
entitlements,  to  include  retirement  pay  and  allowances, 
associated with continuous active service until retirement in the 
grade of captain. 

APPTJCANT CONTENDS THAT: 
The  inequities  and  regulatory  violations  of  the  controlled 
Officer  Effectiveness  Report  (OER) system  in  effect  from  1975 
until 1978 precluded him from receiving the "fair and equitable" 
consideration guaranteed by statute, directive, and implementing 
directive.  Secondly, the selection boards themselves were held 
in  direct  violation  of  statute,  directive,  and  implementing 
regulation.  As a result, he was not selected for promotion and 
was involuntarily separated from extended active duty. 
In support of the appeal, counsel submits an 9 page brief, with 6 
attachments. 
Applicant%  complete submission is attached at Exhibit A. 

Applicant  was  commissioned  a  second  lieutenant  on  10  February 
1965  and entered extended active duty.  He was promoted  to the 
grade of permanent captain effective 2 October 1972. 

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grade of major by the Fiscal Year 1976  (FY76) and FY79 Temporary 
Major Boards and the Calendar Year 1979  (CY79) and CY80 Regular 
Major Boards. 
OER/OPR profile since 1974 follows: 

28 SEP 74 
31 OCT 75 
31 MAR  76 
31 OCT 76 
31 OCT 77 
31 OCT 78 

Abbreviated Report 

8-3 
2-2-2 
3-3-3 
2-2-2 
1-1-1 

d 

On 29 February 1980, applicant was involuntarily discharged from 
active duty in the grade of captain under the provisions of AFR 
36-12 for failure to be promoted.  He served 15 years and 21 days 
of active duty and received $15,000.00' in severance pay. 
On  8  July  1989, applicant  enlisted  in  the  Air  National  Guard 
(ANG) and  is currently serving as a  technical  sergeant  in the 
MOANG . 

T :  
The Chief , Officer Evaluation Branch, AFMPC/DPMAEP, reviewed the 
application and  states that  they  find  the  information provided 
does  not  substantiate  unfair  treatment  by  the  controlled  OER 
system for applicant.  Counsel provides no factual support with 
respect  to  applicant's history  and  case  circumstances.  They 
state  that  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.  A review of the documents provided does not 
reveal any violation of  regulatory provisions or  indicate that 
any OER(s)  is/are flawed.  Therefore, they recommend denial  of 
applicant's request. 
A complete copy of the evaluation is attached at Exhibit C. 
The Chief, Selection Board Secretariat, AFMPC/DPMAB, reviewed the 
application and recommends denial.  They state that counsel has 
not  substantiated his  allegations that  the promotion  boards  in 
question were illegal or unfair.  Although counsel challenges the 
panel  concept  used  by  the  Air  Force  and  the  certification 
requirements of  the  board  results, 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.  The panel 
concept has  safeguards to  insure  an  equal  distribution  of  the 

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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 
need 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 tQan 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.  Counsel addresses the "use of a secret computer model, 
the Projected Order of Merit  (POM).Il  Counsel claims that this is 
a  I'secret  system'! known  only  to  the  Board  president.  While 
counsel would  have us believe  some secret computer product  was 
the reason for applicant's nonselection, that  is not  the case. 
It is true that in the past computerized products were sometimes 
used  as  a  management  tool  to  assist  the  board  president  to 
perform  his  responsibility  of  ensuring  consistency  in  scoring 
among  panels;  however, decisions  to  recommend  individuals  for 
promotion have always been a subjective judgment by the promotion 
board members; such decisions have never been subordinated to a 
'!secret  computer  model, 'I  as  alleged  by  counsel. 
Counsel I  s 
allegation regarding the  illegality of  special selection boards 
(SSBs) is without merit. 
A complete copy of the evaluation is attached at Exhibit D. 
The  Chief, Appeals  and  SSB  Branch, AFMPC/DPMAJA,  reviewed  the 
application and states that the advisory opinions from DPMAEP and 
DPMAEI 
supporting 
documentation.  They recommend denial on the basis of timeliness; 
if considered, deny due to lack of merit. 
A  complete copy of the evaluation is attached at Exhibit E. 
The Chief, Officer Separations Section, AFMPC/DPMARSl, reviewed 
the  application  and  states  that  applicant's  discharge  was 
executed in accordance with law and regulations in effect at the 
time. 
There  is  no  justification  to  correct  the  records  to 
reflect  continuous  active  service.  Therefore,  they  recommend 
denial of applicantls request. 
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 

applicant's 

address 

allegations 

and 

3 

their opinion that applicant has failed to sustain his burden of 
establishing any error or injustice. 
A complete copy of the evaluation is attached at Exhibit G. 

Counsel reviewed the Air Staff evaluations and in summary states 
that  the  evidence  is  clear.  Applicant  was  the  victiq  of  a 
systemically  inequitable  evaluation  system. 
This  systemic 
inequity rose to legal error when applicant was not considered on 
a  fair equitable basis  for promotion  although  the  statute  and 
service directive required such consideration.  Applicant further 
requests this petition be adjudicated on its merits and not time 
barred  from consideration due to  evidence of  a  clear injustice 
and  evidence  of  fraudulent  concealment  of  known  inequities 
associated  with  failure  of  the  controlled  OER  system  and  the 
impact of this failure on promotion consideration.  Not only was 
this  information concealed  from  applicant  in hearing  his  claim 
presented to the Court of Claims, but such information could not 
be  obtained  through  Freedom  of  Information request  or  request 
through his congressman. 
In support of applicant's request, counsel submits a seven page 
rebuttal with four attachments. 
Counsel's complete response is attached at Exhibit I. 

RQ-AR,Q 

FTNDINGS AND  CONCJrTJSIONS OF 
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 1 5 5 2 )  , 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 1 5 5 2   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 
plausible  reason for delay  in filing, and we  are not persuaded 
that the record raises issues of error or injustice which require 
resolution on the merits at this time.  Accordingly, we conclude 

4 

c 

that  it would not be  in the  interest of  justice to excuse  the 
untimely filing of the application. 
3.  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 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 19 January 1995 under provisions of AFR 31- 
3: 

Mr. Walter A. Willson, Panel Chairman 
Ms. Karen Bingo, Member 
Ms. Martha Maust, Member 

The following documentary evidence was considered: 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

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

DD Form 149, dated 24 Apr 93, w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFMPC/DPMAEP, dated 22 Sep 93. 
Letter, AFMPC/DPMAB, dated 29 Nov 93, w/atchs. 
Letter, AFMPC/DPMAJ, dated 24 Jan 94. 
Letter, AFMPC/DPMARSl, dated 10 Feb 94. 
Letter, AFMPC/JA, dated 19 May 94. 
Letter, AFBCMR, dated 2 Jun 94 and 7 Jul 94. 
Counsel's response, undated, with attachments. 

WALTER A. WILLSON 
Panel Chairman 

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