AIR FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02036 

COUNSEL:  NONE 

HEARING DESIRED:  YES 

EB 1 9  

APPLICANT REQUESTS THAT: 

1.  His Officer  Performance Report  (OPR), closing 1 August  1993 
be replaced with the reaccomplished OPR provided. 

2.  His Promotion Recommendation Form  (PRF) for the CY95A  (5 June 
1995) Major  Board  (P0495A) be  replaced  with  the  reaccomplished 
PRF provided. 

3.  His  nonselection  for promotion  to major  beginning  with  the 
CY95A Central Major Board be declared null and void. 

4.  He be retroactively selected for promotion to major, that his 
record be changed to reflect continuous active duty and that all 
pay,  benefits  and  any  other  entitlements also  be  retroactively 
restored. 

APPLICANT CONTENDS THAT: 

His  OPR  did  not  comply  with  regulatory  requirements. 
Specifically,  the  contested  OPR  did  not  include  the  position 
description  of  a  higher-ranking  billet  he  filled  from  Nov  52 
until 1 Aug 93.  The duty title on the contested OPR  is incorrect 
because it did not reflect him as the branch chief.  Although his 
duties were mentioned in his OPR,  the full magnitude of  what  he 
did  was  largely  overlooked  as  the  duties  of  the  position  were 
never recorded on the OPR.  Omission of the above facts created 
an  inaccurate record  of  performance  for  users  of  the  OPR.  He 
also  received  a  Joint  Service Achievement Medal  (JSAM) for  his 
work as branch chief. 
The  PRF  f o r   the  P0495A board  was  tainted because  the  contested 
OPR was  inaccurate and thus, his record of performance that met 
both  his  Management Level  Evaluation Board  (MLEB) and  the  CY95 
Central Major Selection Board was inaccurate. 
The Air Force officer promotion board which considered his record 
for promotion was held in violation of statute and DoD Directive. 
An  SSB  cannot  resolve his  promotion  status.  Not  only  are  the 
benchmark  records  tainted  by  the  illegalities  of  the  original 
boards, the scoring procedure itself is arbitrary and capriciocs, 

as  it  imposes  a  higher  standard  for  SSB  selection  than  for 
original  board  selection.  Therefore,  he  asks  that  the  AFBCMR 
direct his promotion to major as if selected by  the CY95A Major 
Selection Board. 

Had it not been  for errors in his August  1993 OPR, which led to 
errors in his  PRF, his record would have been competitive for a 
Definitely  Promote  (DP) in  the  carryover  process  and  he  would 
have been selected by the original central board.  An SSB  cannot 
fairly assess his promotion status. 

In  support  of  his  request,  applicant  submits  a  personal 
statement, copies of statements from his rating chain, copies of 
the  reaccomplished  OPR  and  PRF, 
and  additional  documents 
associated with the issues cited in his contentions  (Exhibit A). 

STATEMENT OF FACTS: 

On 19 May  1984, the applicant was appointed a second lieutenant, 
Reserve of the Air Force, and was voluntarily ordered to extended 
active  duty  on  16  September  1984.  He  was  integrated  into  the 
Regular Air Force on 30 June 1988 and was progressively promoted 
to  the  grade  of  captain,  effective and  with  a  date  of  rank  of 
17 July  1988.  The  following  is  a  resume  of  his  OPR  ratings 
subsequent to his promotion to that grade. 

Period Ending 
29 Sep 88 
21 Apr 89 
9 Oct 89 
9 Oct 90 
1 Aug 91 
1 Aug 92 
1 Aug 93 
1 Aug 94 
30 Jun 95 
15 Jan 96 

* 
# 

# #  

Evaluation 
Meets Standards  (MS) 
Education/Training Report 

MS 
MS 
MS 
MS 
MS 
MS 
MS 
MS 

*  Contested OPR  -  T o p   Report at the time he was considered and 
nonselected  for  promotion  to  major,  below-the-promotion  zone 
(BPZ), by  the  CY93B  (6 Dec  93)  and  CY  94A  (22 Aug  94)  Major 
Selection Boards. 
#  Top report at  the time he  was  considered and  nonselected  for 
promotion  to  major,  in-the-promotion  zone  (IPZ), by  the  CY95A 
Major Central Selection Board, which convened on 5 June 1995. 
# #   Top  report at the time he was considered and nonselected for 
promotion to major, above-the-promotion zone  (APZ), by the CY96A 
Major Central Selection Board, which convened on 4 March 1996. 

2 

97-02036 

The  applicant  was  awarded  the  Joint  Service Achievement  MedaA 
(JSAM)  for  exceptionally  meritorious  achievement  as  Acting 
Program Support Branch Chief Defense Plant Representative Office 
(DPRO) from October 1992 to September 1993. 
The applicant submitted a similar appeal of the contested OPR and 
PRF under  Air  Force  Instruction  (AFI) 36-2401.  The  Evaluation 
Report  Appeal  Board  (ERAB) considered  and  denied  the  appeal on 
11 January 1996. 

On  31  October  1996,  the  applicant  was  honorably  discharged 
(involuntary) in the grade of captain under the provisions of AFI 
36-3207  (nonselection, permanent promotion).  He  served a  total 
of 12 years, 1 month and 15 days of active service.  He received 
$36,691 separation pay. 

AIR FORCE  EVALUATION: 
The  E v a l u a t i o n   P r o c e d u r e s   S e c t i o n ,   HQ  AE'PC/DPPPEP,  stated  that 
the  applicant  has  provided  no  documentation  to  show  he  was 
" a s s i g n e d "   t o  the Lt Col position number  (billet) or that he held 
In  fact,  his  supervisor,  Mr.  I--- ,  stated 
the  formal  title. 
applicant  d i d   n o t   hold  the  t i t l e   of  branch  chief.  It  follows 
that he was also not placed against the Lt C o l   billet.  Further, 
it  is  not  standard  procedure  to  change  the  duty  title  when 
temporarily  filling  another  position  in  addition  to  normal 
duties.  Applicant  submits  ample  documentation  stating  he  was 
a c t i n g  branch chief, and this information is adequately reflected 
in both the job description and raters' assessment areas of the 
contested OPR.  DPPPEP stated that none of the letters submitted 
provide  documentation  to  s u p p o r t   the  claim  of  inaccurate  duty 
title.  Further, the  "new" job description  is  an  embellishment 
only; the changes are not  directly supported by  accomplishments 
on  the  OPR.  The  original  OPR  clearly  portrays  the  fact  that 
applicant  temporarily  filled  the  position  of  branch  chief,  i n  
t o   his  normal  duties,  from  23  Jan  93  (the date  the 
a d d i t i o n  
position  requisition was  approved) through the closeout date  of 
the  OPR. 
The  report  submitted  as  a  replacement  merely 
embellishes  original  comments  in  section  IV,  provides  a  more 
grandiose description of the temporary position, and adds a  duty 
title the applicant never officially held.  DPPPEP stated that a 
thorough  review  of  the  documents  provided  does  not  reveal  a 
violation  of  regulatory  provisions  or  inadequacies  in  the 
original OPR.  Further, the requested changes are  clearly meant 
to strengthen a valid, filed report; this is strictly prohibited. 
DPPPEP recommended the applicant's  request be denied  (Exhibit C). 
The  A i r   F o r c e   E v a l u a t i o n s   B o a r d   R e c o r d e r ,  
provided  a  technical review of applicant's  case.  DPPPEB stated 
that based upon HQ  AFPC/DPPPEP's findings that the contested OPR 
was  indeed written  within  the  regulatory guidance  of AFR  36-10 
(Aug 8 8 ) ,   they  (DPPPEB) recommended that the applicant's CY95 PRF 

HQ  AFPC/DPPPEB, 

3 

97-02036 

stand  since  no  new  information  has  been  introduced  into  the 
applicant's Record of Performance  (ROP).  The narrative comments 
in Section IV  (Promotion Recommendation) provided  an assessment 
of  the  officer's  performance  which  supports  the  "Promote" 
recommendation  given  in  Section  IX  (Overall  Recommendation). 
(See Exhibit D. ) 
The Selection Board Secretariat, HQ AFPC/DPPB, disagrees with the 
applicant's  contention  that  his  promotion  boards  were  in 
violation of Title 10, United States Code (USC), Sections 616 and 
617. 
DPPB  stated  that  Air  Force  legal  representatives  have 
reviewed their 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 
quality spectrum of records to each panel.  DPPB stated that the 
applicant attempts to discredit the scoring scale used by the Air 
Force for many years on its selection boards.  That scoring scale 
is  from  6 to  10  in  half  point  increments.  Board  members  are 
briefed to try to apply a 7.5 score to an ''average" record and to 
try  to  use  the  entire  scoring  range  throughout  the  evaluation 
process.  Recognizing that the scoring of records is a subjective 
process, it should come as no surprise that individuals may have 
a slightly different definition of what constitutes an "average" 
record. 
DPPB indicated that the applicant seems to imply that the post- 
board  action  of  preparing  an  alpha  select  list  of  the  board's 
recommendations  constitutes  some  illegal  action  and  voids  the 
entire board.  The alpha  select list, which must  be attached to 
the  official  board  report,  is  merely  a  recapitulation  of  the 
selects from the board in alpha sequence vice numerical sequence. 
The  list  is  audited  to  ensure  100  percent  accuracy  before  it 
becomes part of the board report. 
With  regard  to  the  applicant's  claim  that  some  board  members 
depart prior to the adjournment of the board.  Again, applicant 
implies some illegal action occurred and therefore, the board was 
illegal.  In fact, health professions competitive category boards 
were held concurrently with the Line competitive category board. 
When  the health professions board members had completed all board 
responsibilities,  they  were  dismissed. 
After  all  board 
responsibilities were  completed by  the Line board  members,  they 
were  dismissed.  These  procedures  are  in  keeping  with  10  USC, 
Section 621. 
DPPB  stated that the applicant again seems to imply that another 
post-board  function  -  preparing  the  final  board  report  for 
presentation to the approving authority -  was the reason he was 
DoD  Directive  1320.12  directed 
nonselected  for  promotion. 
separate  promotion  boards  be  conducted  for  each  competitive 
category  and  also  authorized  conducting  those  separate  boards 
concurrently.  The  directive  also  authorized  consolidating  the 

4 

97-02036 

challenge 

results of the boards into a single package for presentation tao 
the  approving  authority. 
This  has  been  done  for  many  years 
without 
legal 
objection 
or 
representatives. 
DPPB  disagrees  with  the  applicant's  claim  that  the  board 
president's  role  violates  DODD  restrictions. 
The  actions/ 
responsibilities of each board president  are  in compliance with 
governing directives. 

Force 

by 

Air 

DPPB disagrees with the applicant's  contention that the Air Force 
has  neither  developed  nor  issued  standard  operating  procedures 
for  selection  boards. 
Upon  approval  and  publishing  of  DODD 
1320.12, 4 Feb 92, all Air Force promotion boards were placed on 
hold pending a complete rewrite of AFR 36-89, Promotion of Active 
Duty  List  Officers  (recently superseded by  AFI  36-2501).  Only 
after  the  new  AFR  36-89  was  approved  by  the  Office  of  the 
Secretary  of  Defense  and  published  17 Apr  92,  did  they  resume 
promotion boards. 

DPPB  stated  that  every  board  member  on  each  Line  board 
participated in the decision to use the below-the-promotion zone 
(BPZ)  quota. 
DPPB  disagrees  with  the  applicant's  contention  that  a  Special 
Selection  Board  (SSB) cannot  provide  a  full  measure  of  relief 
since the benchmark records used for an SSB are a tainted record 
sampling. 
The  identification  of  benchmark  records  from  each 
selection board is in compliance with governing directives.  DPPB 
disagrees with the applicant's  claim that the SSB scoring system 
is  "arbitrary  and  capricious"  because  of  possible  scoring 
inversions.  It  should be  noted  the  numerical  scores  from  the 
original board have nothing to do with the numerical scores given 
to  the  benchmark  records  by  an  SSB,  only  the  select/nonselect 
status  of  the  benchmark  is  important.  Because  the  benchmark 
records are  very  similar  in quality, it  is not  unusual to have 
some inversion in the benchmark order of merit  (OOM) created by 
the SSB. 
A complete copy of this evaluation is appended at Exhibit E. 
The Appeals and  SSB  Branch,  HQ AFPC/DPPP, addressed the validity 
of the applicant's  requests in relation to his request for direct 
promotion.  DPPP stated that they do not  understand the purpose 
behind  the  applicant's  appeal  of  the  contested  PRF.  PRFs  are 
accomplished for the sole purpose of being reviewed by promotion 
boards.  To replace the applicant's PRF and directly promote him 
would  be  pointless. 
Air  Force  officer  promotions  are  a 
competitive  process.  To  directly  promote  the  applicant  would 
circumvent the competitive nature of that process.  Were they to 
recommend  approval  of  any  of  the  applicant's  requests  f o r  
correction to his  record,  DPPP believes  special selection board 
(SSB) consideration  would  be  appropriate.  A  duly  constituted 
SSB,  comprised  of  senior  officers  applying  the  full  range  of 

5 

9 7 - 0 2 0 3 6  

promotion criteria, is the most  appropriate method  of assessing 
the  applicant's  potential  to  serve  in  the  next  higher  grade. 
However,  DPPP  concurs  with  the  advisory  opinions  from  HQ 
AFPC/DPPPEP  and  HQ  AFPC/DPPPEB--the  applicant  has  failed  to 
provide the evidence necessary to support his claims of error in 
this appeal.  DPPP does not believe correction to the applicant's 
record is supported by this appeal therefore SSB consideration is 
not warranted.  Based on the evidence provided, DPPP recommended 
the applicant's  request be denied  (Exhibit F). 
The Separations Branch, HQ AFPC/DPPRP, stated that the applicant 
was  considered but  not  selected for promotion  to major  for the 
second time by the P0495A  central selection board and was given a 
mandatory  date  of  separation of  31 Oct  96.  The  case has  been 
reviewed  for  separation  processing  and  there  are  no  errors  or 
irregularities in the separation processing causing an injustice 
to the applicant.  The discharge complies with directives and law 
in  effect  at  the  time  of  discharge. 
DPPRP  stated  that  the 
applicant did not  identify any specific errors  in the discharge 
processing nor provide  facts which  warrant  reinstatement in the 
Air  Force.  DPPRP recommended the applicant's request be denied 
(Exhibit G) . 
The Staff  Judge  Advocate,  HQ AFPC/JA, stated that with respect to 
the applicant's  claims of a defective record, they can discern no 
legal  issue,  and  defer  to  (and  agree  with)  the  advisories 
provided  by  the  other  HQ  AFPC  directorates.  JA  evaluated  the 
applicant's  various  allegations  and,  in  their  opinion,  he  has 
failed  to  establish  any  error  or  injustice  warranting  relief. 
For the reasons outlined in the advisory opinion, JA recommended 
that  the  application  be  denied. 
A  complete  copy  of  this 
evaluation is appended at Exhibit H. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
The applicant reviewed the advisory opinions and  indicated that 
his  rating  chain  tried  to  have  the  duty  title  updated  in  the 
personnel  system before the OPR became a matter  of  record.  He 
has provided  an additional statement from his  former supervisor 
supporting his request f o r   replacement of the contested OPR.  The 
flaw in his Aug  93 OPR  flawed his Record  of  Performance  ( R O P ) ,  
which  was  used  by  his  senior rater and by  the Management Level 
Evaluation Board  (MLEB).  As a result, his PRF was flawed as well 
and his rating chain supports its correction.  The staff advisors 
are conspicuously silent on the error in his  PRF, choosing only 
to rely upon their position on the OPR, which the evidence proves 
is patently  false.  AFPC  provides  no  rationale which  disproves 
his senior rater's  comments about revision of the PRF. 
The only 
conclusion possible based  on the facts and evidence  is that his 
original  PRF  was  in  error  when  considered  by  the  central 
selection  board  and  should  be  replaced  with  the  corrected  PRF 
provided. 

6 

97- 02036 

The  issues  before  the  Board  are  whether  the  requirements  of 
statute, directive, regulation, and even secretarial instruction 
can  be  met  by  the  Air  Force  selection board  procedures.  The 
evidence, Air  Force documents detailing these procedures, proves 
the  Air  Force  process  does  not  allow  compliance  with  these 
requirements. 
AFPC  has  not  provided  the  Board  with  any 
explanation as to  how  its procedures  allow Air  Force selection 
boards  to meet  the  statutory requirements.  While  AFPC  claims 
Doyle  does  not  apply  as  no  error  has  been  shown  in  the 
procedures,  it  does  so  only  by  completely  ignoring  its  own 
procedures -  procedures which were documented using official Air 
Force documents.  The Air  Force selection board  procedures used 
by the boards which considered his file were contrary to law and 
DoD directive.  He believes that AFPC has provided no evidence to 
dispute his position.  He therefore asks the Board to set aside 
all  promotion  nonselections  he  received  as  a  result  of  the 
tainted, illegal process. 

He asks the Board to correct his record to reflect selection to 
major  as  if  selected  in  the  promotion  zone  by  the  CY95  Major 
Board.  As  with  the analysis of the  illegal board  issues, AFPC 
adds only fluff to the discussion of the SSB process.  Their own 
documents prove their position false:  The benchmarks are loaded, 
the  score  system  disallows  majority  consensus,  and  their 
certification in blank  leaves board  members  unable to  form any 
conclusion about a candidate's  promotion status.  And, of course, 
the  impact  of  the  illegal boards  themselves  are  ignored.  The 
evidence proves direct promotion is within the Board's  authority 
and that SSBs cannot provide a full, let alone fitting measure of 
relief. 

He  has  provided  an  additional  statement  from  his  former  rater 
supporting his request for replacement of the contested OPR. 
In summary, he asks the Board to review a l l   the evidence  and he 
believes  the  Board  will  find  that  not  only  was  his  record  in 
error, but the selection board which considered his file was also 
flawed.  For these reasons, he asks the board to correct his file 
to  reflect  promotion  to  major  and  restoration  of  all  rights, 
benefits  and  entitlements  denied  him  because  of  the  defective 
record  and  tainted  selection  board  process. 
The  additional 
information provided  herewith  confirms the AFPC  tactic has been 
only to confuse and with that tactic this Board's  advisors have 
certainly lost focus of the truth. 
Applicant's  complete response is attached at Exhibit J. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

7 

9 7 - 0 2 0 3 6  

c 

2.  The applicati.on was timely filed. 
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission,  we  are  not  persuaded  that  his  requests  should  be 
granted.  His contentions are duly noted; however, we do not find 
his  assertions,  either  singularly or  collectively,  sufficiently 
compelling to override  the  rationale provided  by  the Air  Force 
offices  of  primary  responsibility.  It  appears  to  us  that  the 
statements  provided  in  support  of  the  appeal  to  replace  the 
contested OPR and PRF constitute retrospective assessments of the 
applicant's  performance  and  potential,  written  as  well-meaning 
after-the-fact attempts to enhance the applicant's  promotability. 
Such motivations are not sufficient to support findings that the 
reports  themselves  are  erroneous  or  unjust. 
The  applicant's 
numerous  assertions  concerning  the  statutory  compliance  of 
central  selection  boards,  the  legality  of  the  promotion 
recommendation process, and the legality of the SSB process are 
duly noted.  However, we do not find these assertions, in and of 
themselves,  sufficiently  persuasive  to  override  the  rationale 
provided  by  the  Air  Force  offices  of  primary  responsibility. 
Therefore, we  agree with  the 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.  Accordingly, we find no compelling basis to recommend 
granting the relief sought in this application. 

The applicant's case is adequately documented and it has not 
4 .  
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 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  n o t  
considered with this application. 

The following members of the Board considered this application in 
Executive Session on 14 October 1998, under the provisions of A F I  
36-2603: 

Mr. Thomas S. Markiewicz, Panel Chair 
Mr. Charles E. Bennett, Member 
Ms. Martha Maust, Member 

8 

97- 02036 

The following - , -  

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

uocumentary evidence was considered: 
DD Form 
Applical 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 
Letter, 
Letters 
and 3 Fe 

149, dated 30 Jun 97, w/atchs. 
?t's Master Personnel Records. 
HQ AFPC/DPPPEP, dated 22 Jul 97 
HQ AFPC/DPPPEB, dated 23 Jul 97 
HQ AFPC/DPPB, dated 31 Jul 97. 
HQ AFPC/DPPP, dated 7 Aug 97. 
HQ AFPC/DPPRP, dated 25 Aug 97. 
HQ AFPC/JA, dated 17 Oct 97. 
SAF/MIBR, dated 20  Nov 97. 
from applicant, dated 3 Dec 97, 
b 98, w/atchs. 

w/atchs, 

/'  THOMAS S. MARKIEWICZ  6 

Panel Chair 

9 

97-02036