AIR FORCE 

BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

-- 

DOCKET NUMBER:  97-00143 (Case 3) 

COUNSEL:  NONE 
HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT: 
He be considered for promotion to lieutenant colonel by a Special 
Selection Board  (SSB) for the CY87 Lieutenant Colonel Selection 
Board, which convened on 30 November 1987, with his record being 
reviewed by the entire selection board. 

APPLICANT CONTENDS THAT: 
Defense  Department  regulations  require a  board  to  consider all 
eligible  officers,  then  certify  that,  in  the  opinion  of  the 
majority  of  the  board's  members,  those  selected  are  the  best 
qualified.  The Air  Force divides its board members into panels 
and  each  panel  randomly  reviews  and  scores  a  portion  of  the 
folder.  The entire board did not review his promotion folder. 
No  supporting  documents  were  provided  with  his  application 
(Exhibit A). 

STATEMENT OF FACTS: 
The applicant was appointed a second lieutenant, Reserve of the 
Air Force, on 5  August 1971, augmented into the Regular Air Force 
on 11 September 1979, and was progressively promoted to the grade 
of major, effective and with a date of rank of 1 November 1983. 
On 5 October 1988, the AFBCMR considered and recommended approval 
of applicant's  request that he be  reconsidered for promotion to 
lieutenant colonel by a Special Selection Board  (SSB) for the CY 
1987  (30 November 1987) Lieutenant Colonel Selection Board, with 
inclusion of the Meritorious Service Medal  (MSM) in his selection 
folder.  A copy of the Record of Proceedings (ROP) is appended at 
Exhibit C. 
Applicant's OER/OPR  profile,  commencing with  the  report closing 
15 April 1987, follows: 

Period Ending 

Evaluation 

# 

15 Apr 87 
8 Dec 87 
8 Dec 88 
# #  
# # #   6 Oct 89 
# # # #   6 Oct 90 

1-1-1 
Education/Training Report 
Meets Standards  (MS) 

MS 
MS 

#  Top report at  the time he  was  considered and  nonselected for 
promotion  to  lieutenant  colonel by  the  CY87  Central  Lieutenant 
Colonel Board, which convened on 30 November 1987. 
# #   Top report at the time he was considered and nonselected for 
promotion  to  lieutenant  colonel by  the  CY89  Central  Lieutenant 
Colonel Board, which convened on 15 May 1989. 
# # #   Top report at the time he was considered and nonselected for 
promotion  to  lieutenant  colonel by  the  CY90  Central  Lieutenant 
Colonel Board, which convened on 16 January 1990. 
# # # #   Top report at the time he was considered and nonselected for 
promotion  to  lieutenant  colonel by  the  CY91  Central  Lieutenant 
Colonel Board, which convened on 15 April 1991. 
On 31 December 1991, the applicant was relieved from active duty 
and  retired  in  the  grade  of  major,  effective  1  January  1992, 
under the provisions of AFR  35-7  (Voluntary-Retirement for Years 
of Service Established by Law).  He had completed a total of 20 
years and 28 days of active service for retirement. 

AIR FORCE EVALUATION: 
The  Directorate of  Personnel Program Management,  HQ AFPC/DPPPO, 
stated that the applicant met the CY87 Central Lieutenant Colonel 
Selection Board in-the-promotion zone (IPZ) and was not selected. 
He  also met  the CY89, CY90 and  CY91 Central Lieutenant Colonel 
Selection  Boards  above-the-promotion  zone  (APZ)  and  was 
nonselected.  DPPPO stated that in January 1997, a Judge in the 
United  States Court  of  Federal Claims  ruled that  the Air  Force 
did  not  break  the  law  by  dividing  its  promotion  boards  into 
smaller panels  (Small v.  United  States).  The  Judge  concluded 
that they  (laws) do not prohibit the service from splitting the 
board into smaller panels to make the decision.  DPPPO indicated 
that  Air  Force  legal  representatives  at  several  levels  have 
reviewed  promotion  board  and  program  procedures  on  several 
occasions  through  the  past  few  years. 
These  reviews  have 
determined  that  procedures  comply  with  applicable  statutes  and 
DPPPO  recommended  applicant's  request  for  promotion 
policy. 
reconsideration  by  SSB  be  denied. 
A  complete  copy  of  this 
evaluation is appended at Exhibit D. 

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97-00143 

* 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
The  applicant  reviewed  the advisory  opinion  and  indicated  that 
the Air Force instructions referenced by DPPPO were not followed 
as stated but found to be within the law by a Judge in the United 
States Court  of  Federal Claims.  However, this does not  change 
the  fact  that  the  instructions  were  not  followed.  In  recent 
years,  we  have  had  many  cases  go  to  courts  across  the  USA 
determining  what  is  law  but  not  what  is  right  and  wrong 
(Exhibit G) . 

ADDITIONAL AIR FORCE EVALUATION: 
The  Senior  Attorney-Advisor,  HQ  AFPC/JA,  stated  that  the 
applicant provides absolutely no evidence to support his request. 
In applicant's  rebuttal response, he  stated that the provisions 
of AFI  36-2501 cited by  DPPPO  "were not  followed as stated but 
found to be within the law ....  However, this does not change the 
fact that  the instructions were not  followed."  JA  stated that 
the applicant's  claim is untimely.  The promotion nonselections 
he challenges occurred in 1987- 89  and he retired from active duty 
in  1992,  yet he did  not  file this request until November  1996. 
JA  indicated  that  what  is  obvious  is  that  applicant  failed  to 
exercise the due diligence the law requires and relied instead on 
the actions of others to provide a basis and theory for recovery 
long after the statutory period for pursuing a claim had passed. 
JA  can  discern  no  error  or  injustice  in  this  case  that  would 
warrant  consideration  of  the  application  in  the  interest  of 
j ust ice. 
JA stated that on the merits of the case, applicant has failed to 
(1) articulate a rationale as to how or why the Air  Force failed 
to  follow the applicable laws/regulations in operating its  1987 
lieutenant colonel promotion board; or  ( 2 )   provide any evidence 
whatsoever to support such a claim.  The burden is on applicant 
to prove an error or  injustice; the applicant has  failed to do 
JA  indicated  that  no  provision  of  law  exists  that 
s o .  
specifically  requires  each  member  of  a  promotion  board  to 
personally  review  and  score  the  record  of  each  officer  being 
considered by the board. 

For the reasons expressed in their evaluation, it is JA's  opinion 
that this application should be denied as untimely.  Moreover, as 
applicant  has  failed  to  prove  the  existence  of  any  error  or 
injustice warranting relief, it would not be  in the interest of 
justice  for  the  Board  to  waive  the  statutory  time  limit  for 
filing. 
A  complete  copy  of  this  evaluation  is  appended  at 
Exhibit E. 

t 

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97- 00143 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

He submitted comments and additional documents that attest to the 
fact  that  the Air  Force Board  did  not  promote  all  of  the most 
qualified officers.  He outlines some of the contributions to the 
defense  of  the  United  States  and  our  allies.  Throughout  his 
career, he was called on by the Air Staff and Major Commands to 
head  missions  related  to  the  Philippines,  Ethiopia,  Sudan, 
Thailand, Saudi Arabia, North  Korea,  Panama and Turkey.  He was 
selected only because he was one of the very best  in his field. 
Many  of  these  missions  were  classified  and  the  events  of  the 
mission  could not be written  in his OERs.  The disadvantage of 
these missions  is that there is no way  to receive proper credit 
since  the  details  of  performance  cannot  be  spelled  out.  The 
inspection teams of PACAF, TAC, and ATC rated his performance as 
the best, yet, a promotion board stated that he was on the bottom 
of  his  year  group. 
A 
complete copy of this response is appended at Exhibit G. 

It  appears  somewhat  contradictory. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted 'all remedies provided by existing 

1. 
law or regulations. 

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 
3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the  existence  of probable  error  or  injustice.  The 
applicant's  assertions  concerning  the  statutory  compliance  of 
central selection boards are duly noted.  However, we do not find 
these  uncorroborated  assertions,  in  and  of  themselves, 
sufficiently persuasive to override the rationale provided by the 
Air  Force. 
Therefore,  we  agree  with  the  opinions  and 
recommendations of  the  appropriate Air  Force  offices  and  adopt 
the rationale expressed as the basis  for our decision that  the 
applicant has  failed to sustain his burden of establishing that 
he has suffered either an error or an injustice.  Therefore, we 
find no compelling basis to recommend granting the relief sought. 

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. 

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97- 00143 

The following members of the Board considered this application in 
Executive Session on 1 4   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 documentary evidence was considered: 

Exhibit A.  DD Form 149,  dated 2 6   Nov 96. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  ROP, AFBCMR Docket No.  88- 01620,  dated 2 2   Nov 88. 
Exhibit D.  Letter, HQ AFPC/DPPPO, dated 28  Feb 97. 
Exhibit E.  Letter, HQ AFPC/JA, dated 6  Aug 97. 
Exhibit F.  Letters, SAF/MIBR, dated 31 Mar 97  and 2 0   Aug  97. 
Exhibit G.  Letters from applicant, dated 2 6   Apr 97  and 

15 Sep 97,  w/atchs. 

/  THOMAS S.  MARKIEWICZ 

Panel Chair 

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97- 00143