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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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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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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. 

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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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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