AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
IN THE MATTER OF:
DOCKET NUMBER: 96-03665
NOV 2-7,lW
COUNSEL: None
HEARING DESIRED: No
APPLICANT REOUESTS THAT:
1. The Officer Selection Brief reviewed by the Calendar Year
1996A (CY96A) Majors board should be corrected to include his
assignment to the
Operations Support Squadron (16 OSS)
effective 15 January 1995 and reflect a Duty Air Force Specialty
Code (DAFSC) of 1tK11S3Y11 instead of IlllS3Y.
2. The Officer Performance Report for the period 25 May 1988
through 24 May 1989, with attachments, be declared void and
removed from his records.
3 . He be directly promoted to the grade of major as if selected
by the CY96A board. [ A p p l i c a n t o r i g i n a l l y requested he be given
c o n s i d e r a t i o n for promotion t o major by S p e c i a l Selection Board
(SSB) for CY96A board, b u t then amended
t h i s r e q u e s t i n h i s
r e b u t t a l . 3
---
APPLICANT CONTENDS THAT:
He made every effort to have his duty history corrected. Without
the current data a fair assessment of his duty performance and
career progression could not be made. The contested OPR is
unfairly prejudicial to his career. His duty performance has
always been outstanding no matter what personal or professional
obstacles he was challenged with. He states
do not want to be
promoted because I have an alcohol disease." If his duty history
reflected his actual career progression and the contested OPR
were removed, his records would be able to be evaluated
accurately without prejudice to his career.
Applicant's complete submission is attached at Exhibit A .
STATEMENT OF FACTS:
The applicant was referred to Social Actions as a result of an
on-base traffic-related accident in which alcohol was a factor.
He was diagnosed as alcoholic by the mental health office at
AFB and entered into the Substance Abuse Reorientation
and Treatment (SART) in February 1989. He completed the program
in November 1989.
In the interim, the contested OPR was referred to the applicant
on 1 June 1989. The report indicated that he did not - meet
standards in the Section V Performance Factor of IIProfessional
Qualities, and made reference to his "driving under the
influence.Il The applicant acknowledged receipt but did not rebut.
The applicant was considered but not selected for promotion to
the grade of major by the CY96A board, which convened on 4 March
1996. The most current DAFSC/duty history entry on that OSB was
I l 5 Jan 96 - K11S3A/CF PLANS/MH53J INST AIRCRAFT CC, Special
Operations Squadron.Il The next entry was Ir5 Jan 95 - 11S3Y/SPL
MSN PLNR/MH53J INST ACFT CC, Operations Support Squadron." The
Promotion Recommendation Form (PRF) reflected an overall
recommendation of llPromote,ll and a DAFSC of K11S3A. The top OPR
also reflected a DAFSC of K11S3A, and a duty title of WH-53J
Instructor Aircraft Commander/Special Mission Planner, 16 OSS,
Hurlburt Field.
The applicant was also nonselected by the CY97C board, which
convened on 16 June 1997. That OSB reflected the duty entry and
DAFSC he is requesting. As a result of this second nonselection
to major, he was separated from active duty. He is currently
serving as a captain in the Air Force Reserves.
AIR FORCE EVALUATION:
The Chief, Reports & Queries Team, HQ AFPC/DPAISl, indicates that
the applicant's military personnel flight (MPF) had previously
corrected the DAFSC. The author concurs that the DAFSC f o r
applicant Is 15 January 1995 duty entry should read 1'K11S3Y11
instead of iills3Y. I'
A complete copy of the Air Force evaluation is at Exhibit C.
The Chief, Appeals & SSB Branch, HQ AFPC/DPPPA, reviewed the
appeal and indicates that the DAFSC for the 15 January 1995 duty
history has been corrected to include the IrK1l prefix, which
indicates the applicant is a qualified instructor pilot. The
applicant petitioned HQ AFPC through appropriate channels prior
to the CY96A board to have a duty title corrected on his OSB,
which was accomplished. The Chief contends the applicant's
request for SSB due to an incorrect duty history is not
warranted. The duty title was corrected on his OSB prior to t h e
CY96A board. The prefix IIKIf was added to his DAFSC afterwards.
However, his 14 January 1995 OPR and the CY96A OSB stated his
duty title was WH-53J Instructor Aircraft Commander/Plans
0fficer.Il The promotion board was fully aware the applicant had
been upgraded to instructor status. It would be presumptuous to
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96-03665
assume the promotion board members know the plain-text
translation of every DAFSC, or the numerous prefixes and suffixes
that can be attached to them. The Chief does not believe the
applicant's promotion potential was affected by the omission and
that SSB consideration on that basis is unwarranted. The omitted
rrKtl prefix was a minor administrative error that in- no way
reduced the fairness of his promotion consideration. As to the
contested OPR, why did the applicant wait more than seven years
before filing this appeal? The applicant has proven only that he
waited for promotion nonselection to motivate him to look for
anything that may have negatively impacted his promotion
potential, An evaluation report is not erroneous or unjust solely
because it may have contributed to nonselection for promotion or
may impact future promotion or career opportunities. The Chief
concurs with the applicant that it is reasonable to assume the
contested report negatively impacted his promotion potential.
However, to effectively challenge an OPR, it is important to hear
from all of its evaluators. The applicant provides no information
from the evaluators. He states that the contested report should
be removed due to the existence of I'two sheets attached to [his]
OPR. . . which were not included in his records at [the base
level] . I f He does not mention that these sheets were the referral
letter and his decision not to provide comments. Whether or not
these documents are attached to the report at base level is
completely inconsequential to this appeal; the Chief will ensure
that they are. The report appears to have been referred for an
appropriate reason and processed in direct accordance with Air
Force policy. While the Chief applauds his completion of SART
and consistent pursuit of sobriety, she believes it is far more
likely he was nonselected as the result of the abundance of
highly qualified helicopter pilots without Ita driving under the
influence incident," than due to an omitted IrKIf prefix. The Chief
recommends denial.
A complete copy of the Air Force evaluation is at Exhibit D.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant reviewed the evaluations and argues that AFPC has not
provided any documents to support their position that [the DAFSC]
error was harmless. As for the OPR, it is an unjust rating of
his performance. If it was a Itjust'' report, it would not have
been a major factor in his nonselection, and AFPC concurs with
that position. Had every officer who received a Driving Under the
Influence (DUI) also received a referral report, he could make no
claim of injustice. But that is not the case. He continues to be
punished for actions that were atypical and isolated.
In a
supporting statement, the additional rater of the OPR asserts
that he wanted to impress on the applicant the seriousness of not
correcting a potential problem. The OPR had the desired effect,
but he did not foresee the impact on the applicant's future. He
3
96-03665
states that the applicant should not be further punished for his
short-sightedness. He supports removing the report and giving the
applicant SSB consideration.
The applicant also raises contentions concerning the promotion
process. He argues, in part, that the selection boards are
defective in that they fail to follow the law and DOD Directives
(DODD) which establish the basic procedures each selection board
must follow. The requirements of Title 10, USC, Sections 616 and
617, are unequivocal. A selection board may not recommend an
officer for promotion unless the officer received the
recommendation of a majority of the members of the board. A
majority of the members of the board llmust certify" the officers
recommended are best (and fully) qualified for promotion.
Further, separate board reports are not issued in violation of
DODD 1320.12. As the separate boards required by law and
directive were not held, the protection envisioned by this DODD
was denied him. Air Force selection boards give final
recommendation authority to the board president---not the
majority of the members of the board as required by law. This
contravenes not only DODD 1320.12, but also Sections 616 and 617.
He requests direct promotion to major as if selected by the CY96A
board because an SSB cannot provide a full measure of relief.
Applicant's complete response, and a volume of "Evidentiary
Supportll pertaining to the alleged illegal selection boards, is
at Exhibit F.
ADDITIONAL AIR FORCE EVALUATIONS:
The Chief of Operations, Selection Board Secretariat, HQ AF'PC,
DPPB, reviewed this appeal and disagrees with the applicant's
contentions. Air Force legal representatives have reviewed the
procedures on several occasions during the past few years and
have determined those procedures comply with applicable statutes
and policy. The Air Force has used the panel concept for many
years in conducting selection boards. The panel concept has
safeguards to ensure an equal distribution of the equality
spectrum of records to each panel. The author elaborates on
these arguments and explains the order of merit (OOM) process.
A complete copy of the Air Force evaluation is at Exhibit G .
The Chief, Appeals & SSB Branch, HQ AFPC/DPPPA, examined the
application and states that the additional rater's letter does
not warrant removing the contested OPR. It is not uncommon for
evaluators to write accurate, sometimes difficult, evaluations of
officers and years later soften their position in reaction to
subsequent performance and/or promotion consequences. For this
reason, OPRs are considered most accurate at the time they are
rendered. The other evaluators of this report are not heard from.
Absolutely no evidence is provided that would suggest the
contested OPR is in error or the product of injustice. The
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96-03665
applicant fails to recognize the seriousness of his misconduct.
The consistence, or lack thereof, with which standards of conduct
are enforced does not change the standard. Removal of the
contested report would make the applicant's record inaccurate.
The Chief's original recommendation to deny still stands.
A complete copy of the Air Force evaluation is at Exhibit H.
-
-
The Staff Judge Advocate, HQ AFPC/JA, agrees with AFPC/DPPPAIs
advisories and states that the rest of applicant's brief presents
the now familiar arguments that the Air Force's promotion board
procedures violate both statute and DODD. At the time the
Defense Officer Personnel Management Act (DOPMA) was enacted,
Congress was certainly aware of the existence of promotion board
panels and expressed no problem with them. A majority of the
board must recommend an officer for promotion and each member is
required to certify that the corporate board has considered each
record and that the board members, in their opinion, have
recommended those officers who "are. best qualified for
Notwithstanding the opinion cited in Roane v. U.S. ,
promotion. It
two other judges from the US Court of Federal Claims have held
otherwise, determining that the Air Force's promotion system
fully complies with the law (Small v. U.S., NePtune v. U S . ) . The
Air Force's competitive category llpanels,lf which are convened
concurrently as permitted by DODD 1320.12, fully accomplish its
stated purpose; L e . , members of each competitive category
compete with their respective "panelIt only against other officers
of that category. The nonline competitive panels are panels in
name only; they, along with the line competitive category panels,
are actually separate promotion boards for purposes of the
statutes and DODD. Consequently, they fulfill a11 the requisite
statute and regulatory requirements. The applicant has offered no
proof that the board president of this or any Air Force selection
board has ever acted contrary to law or regulation. As a result
of the requirements levied by the 4 February 1992 version of the
DODD 1320.12, the Air Force rewrote AFR 36-89 to comply with
those requirements. This revised directive fully complies with
the DODD. As for the SSB issue, the applicant has not provided a
meritorious application warranting the need for any relief. As
for the merits of these claims, the SSB procedure fully comports
with the Title 10, USC, Section 628, requirement that an
officer's 'Irecord be compared with a sampling of the records of
those officers of the same competitive category who were
recommended for promotion, and those officers who w e r e not
recommended for promotion by the board that should have
considered him. The burden is on the applicant to prove otherwise
and he has failed to do so. The BCMR has not in the past
considered direct promotion except in the most extraordinary
circumstances where SSB consideration was deemed totally
unworkable. The applicant's case clearly does not f a l l into that
category. The author suspects that the real reason the applicant
was not selected was that his record was simply not strong
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96-03665
.
enough, not because of any error or injustice requiring action by
the BCMR, but simply because his actual record of performance
fell short of the requisite standard. The application should be
denied.
A complete copy of the Air Force evaluation is at Exhibit 1.-
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:
Applicant reviewed the additional Air Force evaluations and
provided a 20-page counter-argument. He reiterates his previous
contentions with respect to his OSB, the contested OPR, and the
promotion board process. He asks again for direct promotion to
major. He states that the Board is required to provide full and
fitting relief and the SSB cannot provide full and fitting
relief.
Applicant's complete rebuttal, with attachments, is at Exhibit K.
The applicant has exhausted all remedies provided by existing
THE BOARD CONCLUDES THAT:
1.
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. We
carefully and thoroughly reviewed the evidence of record,
applicant's extensive submission, and the additional rater's
supporting statement. Applicant's arguments regarding the
contested OPR and OSB, as well as his numerous contentions
concerning the statutory compliance of central selection boards,
the legality of the SSB process, inter allia, were also duly
noted. However, we do not find his assertions pertaining to the
Air Force promotion and SSB processes in general, and the
contested documents in particular, sufficiently persuasive to
override the rationale provided by the Air Force offices of
primary responsibility. We do not deny that the contested OPR may
have had a negative impact on the applicant's promotion
potential.
However, this possibility, coupled with the
additional rater's current regrets, do not make the report
inaccurate or unfair as rendered. As for the OSB, while the DAFSC
for the 15 January 1995 duty entry should have included the rrK1r
prefix, we find its omission no more than a harmless error. The
promotion board, which had access to the applicant's entire
record, was aware that he had been upgraded to instructor status.
We do not believe the missing rrK1l prefix adversely impacted his
promotion potential or justifies SSB consideration.
The
applicant does not provide convincing evidence that the Air Force
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96-03665
promotion system is not in compliance with statute, nor does he
demonstrate that, even if one were to accept his arguments as
valid, there is a nexus between the alleged systematic errors and
his nonselection. We therefore agree with the recommendations of
the Air Force and adopt the rationale expressed as the basis for
our decision that the applicant has failed to sustain his burden
of having suffered either an error or an injustice warranting SSB
consideration. Inasmuch as we have found no errors which denied
the applicant full and fair consideration by the promotion board,
we have no compelling basis for granting his request for direct
promotion. We therefore conclude that this appeal should be
denied in its entirety.
THE BOARD DETERMINES THAT:
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 14 October 1998, under the provisions of AFI
36-2603 :
Mr. Thomas S. Markiewicz, Panel Chair
Mr. Charles E. Bennett, Member
Ms. Martha Maust, Member
The following
Exhibit A.
Exhibit B.
Exhibit C.
Exhibit D .
Exhibit E.
Exhibit F.
Exhibit G .
Exhibit H .
Exhibit I.
Exhibit J.
Exhibit K.
documentary evidence was considered:
DD Form 149, dated 13 Dec 96, w/atchs.
Applicant's Master Personnel Records.
Letter,
HQ AFPC/DPAISl, dated 23 Dec 96.
Letter ,
HQ AFPC/DPPPA, dated 17 Jan 97.
Letter,
AFBCMR, dated 3 Feb 9 7 .
Letter,
Applicant, dated 1 May 97, w/atchs.
Letter,
HQ AFPC/DPPB, dated 29 Jul 97.
Letter ,
HQ AFPC/DPPPA, dated 7 Aug 97.
Letter,
HQ AFPC/JA, dated 4 Sep 9 7 .
Letter ,
AFBCMR, dated 1 5 Sep 97.
Letter,
Applicant, dated 24 Oct 97, w/atchs.
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96-03665
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