DEPARTMENT OF THE AIR FORCE 

WASHINGTON,  DC 

"1999 

Office of the Assis tant Secretary 

AFI3CMR 96-01380 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 

of' Military Records and under the authority of Section 1552, Title 10, United States Code (70A 
Stat 11 6), it is directed that: 

litary records of the Department of the Air Force relating t 
be corrected to show7 that lie be considered for promotion 

Selection Board for the Calendar Year  1997A Central Colonel Board. 

c/ Director 

Air Force Review Boards Agency 

RECORD OF PROCEEDINGS 

AIR  FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS Ff?R  9 TcjQfi9 

.J. 

6.d 

, t ,   *\$  $- 

IN THE MATTER OF: 

DOCKET NUMBER:  96-01380 

* m  c, 

ZOUNSEL :  None 
HEkiiING DESIRED:  NO 

APPLICANT REQUESTS THAT: 

He be promoted to the grade of  colsnel or, in the aiternative, he 
be given the opportunity to compete for promotion to the grade of 
colonel before a Special Selection Board  (SSB). 

APPLICANT CONTENDS THAT:  4 
The S S B   held on 13  January 1997 was  improperly constituted.  He 
was  considered and  not  selected  f a -  promotion to colonel by  the 
Calendar  Year  1995  (CY95) Central  Colonel  Selection  Board  on 

of  the board  were- 

Because of errors in 
his  record, he  was  sranted  an  S S B   that  convened  on  13  Januarv 

and spirit of paragraph 2.3.4 of AFT  36-2501. 

-J  dvocate membexs were 
He  was  r,ot  select 
rved on b o t h   boards 

Applicant-’s complete submissicr, is attached at Exhihit A. 

STATEMENT OF FACTS: 

The applicant is currently serving GE  extended active duty in the 
grade of lieutenant colonel. 

Applicant  was  considered and  not  selected  for promotion  to  the 
grade  of  colonel  by  the  CY95  (10  October  1995)  and  CY97H 
(15 September 1997) Central S e l e c t i o n   Boards. 

Applicant  was reconsidered and not  selected f o r   promotion to the 
grade of colonel by SSB  for the CY97A  (13 January 1997) board. 

96-91380 

OPR profile since 1995, follows: 

PERIOD ENDING 

EVALUATION OF POTENTIAL 

# 

# #  

27 Feb 95 
27 Feb 96 
27 Feb 97 
25 Aug 97 

Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 

#  Top report at time of CY95 board. 
# #   Top report at time of CY97B board. 

On  14 April  1998, the A i r   F o r c e   E c a r c l   for Correcticn af Military 
(AFBCMR)  considered, ( a ~ s  s r a ? z e d ,   a  similar c a s e   (TAB 1 )  . 
Keccrds 

AIR FORCE EVALUATION: 

The  Chief  of  Ops,  Selection  Boar-d  Secretariat ,  Directorate  of 
Personnel  Program  Mgt,  AFPC/DPPB,  reviewed  the  application  and 
states  that  the  applicant s  request  for  reconsideration  for 
promotion  to  the  grade  of  ,zolmel via  SSB  is  without  merit. 
Nothing  in  the  statutes ,  DoD  directives/instruct ions ,  or  Air 
Force  policy  precludes  an  officer  that  served  on  a  central 
promotion  board  from  subsequenEly  serving  on  an  SSB  for  that 
central  board.  Therefore, they  -ecommend denial of  applicant s 
request. 

A  complete  copy  of  the  Air- Foi-ce evaluation  is  attached  at 
Exhibit C. 

The  Staff  Judge Advocate, AFPC/JA, reviewed  the  application and 
states  tnat  the  applicant  conteiids  the  presence  of  the  same 
officer  on  his  central  se1ectio:i  board  and  his  S S B   requires 
finding  the  SSB  to  have  beer?, illegally  constituted. 
They 
The  applicant  cites  paragraph  2.3 - 4 ,   AFI  36-2501 
disagree. 
ii  March  1996) ,  in  support  of  his  position. 
That  paragraph 
states: 

An  officer  cannot  serve as  a  member  of  two  successive boards 
considering  officers  of  the  same  competitive  category  and 
grade  (except  for  S S B s   when  the  second  b(iard  is  not 
considering the same officer or-  officers). 

This  paragraph  prohibits  an  officer  from  ser-Jing  on  two 
successive boards, except  in the case of  SSBs,  where  an officer 
may serve on successive boards so long as the later boards do not 
consider  the  same  officer  or  group  of  officers.  Paragraph  6.1 
describes S S B s   as  compared to  selection boards :  "SSBs  replicate 
central  selection  boards,  to  include  pre-  and  post-board 
procedures  and  policies  as  cutlined  in Chapters  1 through  5  of 
this instruction, to the maximum extent possible.  Paragraph 9b, 
AFR  36-89  (17 April  1992), the  predecessor  to  the  current AFI 

2 

I

.

Paragraph  3 1   stated,  '

paragraph  stated,  "No officer may  be  a member  of  two successive 
boards for considering officers of  the same competitive category 
  . . SSBs  replicate  central 
and  grade. 'I 
Paragraph 35 
selection boards  to  the maximum  extent possible. II 
(SSB Composition  and  Procedures)  went  on  to  say,  "Boards  will 
consist of officers who are qualified as prescribed in paragraph 
3.4 clarif led  the  circumstances under  which 
9 . . . .   Paragraph 2 
an  officer could  s e r v e   on  successive  S S B s  
-  that  is, when  t h e  
second board  ( S S B )   was not Considering the same officer or g r o u p  
of officers.  The question which remained, however, even in view 
of both the AFR's and the AFI's comments regarding i.eplication of 
the  selection  board  by  the  SSB,  was  whether  the  prohibition 
against serving on two successive bsards applied to service by an 
officer on an S S B   who had previously served on a selection board 
for  the  same  officer.  This  question  was  addressed  in  OpJAGAF 
:994/13,  10  February  1994,  i f i   a  c a s e   involving  facts virtually 
identical to this case: 

= 

. . . [Tine applicant now contends the  S S B . .  .was in violation of 
10 1 J . S . C .   612(b) ,  which  states  ' ' [ n l o  officer may  be  a member 
of  two  successive  selection  boards  convened  under  section 
6ll(a) of  this title for the  consideration of officers of  the 
same  competitive  category  and  Grade.  The  applicant  alleges 
this  prohibition  also  applies  to  SSBs. 
He  bases  his 
contention  on  section  [628 ; b \  ,I;] ,  which  according  to  the 
applicant,  applies  the  section  612 (b)  requirement  to 
SSBs. . . . [SI ubsection  (b) (1) . . .states: 

In the case of an officer who 1s eligible for promotion who 
was  considered  for promotion by  a  selection board  but  was 
not  selected,  the  Secretary  of  the  military  departmen: 
concerned  .  .  .  may  convene a special selectim board under 
this subsection  (composed in accordance with section 512 of 
this title  . 
. ' I   to detei-mine whether such cfficer should 
be  recommended  for  promotiori  if  the  Secretary  concerned 
determines  that  (the  acticn  of  the  previous  board  was 
illegal  or  involved  material  error  0:-  incomplete 
inf orrnat ion) . 

- 

In other words, the applicant argues that an officer who sits 
on a regular selection board  is disqualified frorr  sitting on a 
successive SSB f o r   t h e   same competitive category and grade . . . .  

We  do  not  agree with  the  applicants  (sic) construction of  10 
U.S.C. 628jb) (1) to  the  effect-  than  an  officer  who  was  a 
member of a regular selection board is prohibitec from sitting 
on  a  successive  SSB.  The  prohibition  is  that  I'  [nlo officer 
may  be  a  member  of  two  successive  selection  boards  convened 
under section 611(a) of  this title.. . (10 U . S . C .   612(b)).  This 
specific reference to section 611i,a) was not  in t h e   statute as 
originally adopted in 1980.  Rather the section was amended in 
1981 to add the reference.  1.0 U.S.C. 611(a) does not refer to 

9 6 - 0 1 3 8 0 

SSBs, but  to  regular  selection boards.  SSBs  are  covered  by 
If  Congress  riad  intended  section  612 (b) to 
section  628. 
extend  to  SSBs, it  easily  cculd  have  said  so, either  In  the 
original  legislation  or  In  t h e   1981  amendment. 
Instead, 
Congress chose to expressly limit the sections  [ s i c ]   effect to 
regular boards  convened under  section  611 (a) . 
Therefore, we 
do  not  believe  Congress  intended  its  mandate  that  SSBs  be 
I1composed in accordance with section 612" to prohibit a member 
of  a  regular board  from  sitting on  a  succeeding SSB  convened 
for the same competitive category and grade. 

In  their  view,  the  rationale  above  is  dispositive  of  this 
applicant-'s case, and they agree with  it.  Notwithstanding their 
view of the law in this matter, they have been made aware of the 
fact that-  another case before the AFBCMR  involving an individual 
with  facts  exactly  the  same  as  the  applicant's, was  recently 
resolved in that applicant s favor by granting him consideration 
f o r   promotion to the grade of  colonel by  S S B   for the CY97A SSB. 
The appli-cant in this case has requested similar relief so as to 
offset  any  possibility of  an  injustice.  While  it  would  not  be 
contrary to the  law should the AFBCMR  deny  the  relief  requested 
by  this  applicant,  they  nevertheless believe  that  officers  who 
are  truly  similarly  situated  should  generally  be  treated  in  a 
similar  manner.  In  light  of  the  relief  accordec: the  earlier 
applicant ,  contrary  adjudicatiori  in  this  case  (even though  it 
would be  fully supported by  the  law) could be  viewed as unjust. 
It  is  their  opinion  that  this  application  can  be  denied  as  a 
matter  cf  law  because  the  applicant  has  failed  to  present 
relevant evidence of any legal error.  However, given the Board's 
action  i.n  the  earlier  BCMR  appiica.tion, it  would  not  be 
inappropriate to grant the relief requested in this case. 

A  complete  copy  of  t.he Air  Force  evaluation  is  attached  at 
Exhibit E ) .  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Complete  copies  of  the  Air  Force  evaluations were  forwarded  to 
the applicant on 14 September 1998, for review and response.  A s  
of this date, no response has been received by this office. 

THE BOARD CONCLUDES  THAT: 

i .   The applicant has exhausted all remedies provided by existing 
law or regulations. 

2 .   The application was timely fi-led. 

4 

. 

96-01380 

3 .   Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice 
warranting consideration for promotion to the grade of colonel by 
the  CY97A S S B .  
While  we  cannot conclusively determine that  the 
presence of the  same officer on his  central selection board  and 
his  SSB  was  the  reason  for  the  applicant's  nonselection  for 
promotion to the grade of colonel by the CY97A SSB, we believe it 
may  have  served to  deprive  him  of  full  and  fair consideration. 
In  order  to  offset  any  possibility  of  an  injustice  to  the 
applicant, we  believe  his  record should be  considered by  an SSB 
for the CY97A S S B .   In regard to his request for direct promotion 
to  the  grade  of  colonel,  we  believe  that  a  duly  constituted 
selection board  is  in  the  most  advantageous position  to  render 
this determination and that its prerogative to do so should only 
be  usurped  under  the  most  extraordinary  circumstances 
Accordingly, his request for direct promotion is denied. 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT,  be  considered for promotion to the  grade 
of colonel by an SSB for the CY97A Central Colonel Board. 

The following members of the Board considered this application in 
Executive Session on 16 December 1998 under the provisions of AFI 
3 6 - 2 6 0 3 :  

Ms. Charlene M. Bradley, Panel Chair 
Mr. Terry A. Yonkers, Member 
Ms. Peggy E. Gordon, Member 
Ms. Gloria J .  Williams, Examiner  (without. vote) 

All  members  voted  to  correct  the  records, as  recommended.  The 
following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 7 July 1998. 
Exhibit B .   Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFPC/DPPB, dated 27 July 1998. 
Exhibit D.  Letter, AFPC/JA, dated 31 August 1998. 
Exhibit E.  Letter, AFBCMR, 14 September 1998. 

5