AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  94-10339 

COUNSEL:  NONE 
HEARING DESIRED:  YES 

MAY  2  3  1995 

1.  Set  aside  all  nonselections  to  the  grade  of  major  by  the 
Calendar Years  1979  (CY79) and  CY80  Central  Boards  and Special 
Selection Boards ( S S B s ) .  
2.  Promotion to  the  grade  of  major  as though  selected by  the 
CY79 selection board. 
3.  Continuation on active duty for a period of time in order to 
be considered for promotion to the grade of lieutenant colonel by 
two selection boards. 

4.  He  receive  any  and  all  back  pay,  allowances,  and 
entitlements, to include what he would have  accrued on extended 
active duty. 

5.  The  Officer  Effectiveness  Reports  (OERs) rendered  for  the 
periods closing 16 March 1975 and 31 July 1978 be declared void. 
6 .   His record be corrected to reflect continuous active service 
from  the  date  he  was  separated  as  a  result  of  his  illegal 
separation  until  the  date  of  decision  of  his  application  and 
direct retirement in the grade of major at this point. 

As a result of a previous appeal, he was afforded consideration 
for promotion to the grade of major by  SSB.; however, it appears 
that those boards were improperly convened and conducted.  Also, 
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 equitable1’ 
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, 
attachments. 

counsel submits a 16 page brief, with 

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Applicant's 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 10 February 1972. 
Applicant  was  considered and not  selected for promotion to the 
grade  of  major  by  the  CY76,  CY78,  and  CY79  Temporary  Major 
Selection Boards.  He was also considered and not selected by the 
CY79 and CY80 Permanent Major Selection Boards.  As a result of 
an  earlier  appeal  to  the  AFBCMR,  he  was  considered  and  not 
selected  by  Special  Selection  Board  (SSB) ,  which  convened  on 
8 November 1982, by each of the above boards. 
OER/OPR profile since 1970 follows: 

10 MAY 70 
31 OCT 70 
31 OCT 71 
30 SEP 72 
15 JUL 73 
15 JUL 74 
16 MAR  75 

17 MAR  75 THRU 31 OCT 

76 

31 OCT 77 
31 JUL 78 
31 JUL 79 

8-4 
9-4 
8-3 
9-3 
9-4 
9-4 
8-3 

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

Not rated for period; report 
removed by order of CS 

On  29  February  1980, applicant was  involuntarily discharged  in 
accordance  with  AFR  36-12,  paragraph  3-5,  for  failure  to  be 
promoted.  He  served over 15 years of active duty and received 
severance pay in the amount of $15,000.00. 

AIR STAFF E VALUATION: 

The Deputy Chief, Selection Board  Secretariat, AFMPC/DPMAD;  the 
Chief ,  Evaluation  Procedures  Branch,  AFMPC/DPMAEP;  the  Chief, 
Appeals  and  SSB  Branch,  AFMPC/DPMAJA;  the  Chief,  Officer 
Separations  Section,  AFMPC/DPMARSl;  the  Chief,  Retirement 
Programs Section, AFMPC/DPMARRl;  and  the  Staff  Judge Advocate, 
AFMPC/JA reviewed the application and recommended denial. 

Copies of the evaluations are attached at Exhibits C, D, E, F, G. 
and H. 

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a 

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Applicant  reviewed the Air Staff evaluations and provides an 18 
page response, with attachments, which is attached at Exhibit J. 

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 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 
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 
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 the provisions of AFR 
31-3 : 

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

The following documentary evidence was considered: 
DD Form 149, dated 15 May , w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFMPC/DPMAB, dated 16 Sep 93. 
Letter, AFMPC/DPMAEP, dated 4 Oct 93. 
Letter, AFMPC/DPMAJA, dated 16 Dec 93. 
Letter, AFMPC/DPMARSl , dated 11 Feb 94. 
Letter, AFMPC/DPMARRl, dated 30 Mar 94. 
Letter, AFMPC/JA, dated 12 May 94. 
Letter, AFBCMR, dated 24 Aug 94. 
Applicant's response, dated 13 Dec 94, w/atchs. 

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

WALTER A. WILLSON 
Panel Chairman 

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