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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  95-02191 

COUNSEL:  NONE 
HEARING DESIRED: YES 

h . 3 1  1998 

APPLICANT REQUESTS THAT: 

1  His nonselections for promotion beginning with  the Caiendar 
Year  (CY) 1991B  Lieutenant  Colonel  Board  be  declared  null  and 
void. 

2.  The Officer Performance Report  (OPR) closing 29 April 1991 be 
declared null and void. 

3 .   The Promotion Recommendation Form  (PRF) reviewed by the CY91B 
Lt  Colonel  Board  be  upgraded  to  a  "Definitely  Promote" 
recommendation.  In  the  alternative, he  be  granted  60 days  to 
obtain  additional support to  correct the  PRF after the  tainted 
OPR is removed from his file. 

4. 
His  record  be  corrected  to  reflect  he  was  selected  for 
promotion  to  the  grade  of  lieutenant  colonel  in  the  promotion 
zone by the CY91B Lt Colonel Selection Board. 
(,By amendment at Exhibit I) : 
5.  The start date for the Air  Force Commendation Medal  (AFCM) 
covering  the  period  9  September  1986  to  16  November  1990,  be 
changed to  1 February 1989, and that  the AFCM  be  upgraded to a 
Meritorious Service Medal  (MSM) . 
6.  The decorations' portion of his record be corrected and he be 
reconsidered for promotion by  Special Selection Board, beginning 
with the CY91B board. 

APPLICANT CONTENDS THAT: 

The contested OPR is both  an incomplete and unjust portrayal of 
his performance.  Not only are duty accomplishments minimized  (or 
ignored),  the  report  does  not  fully  or  accurately  portray  the 
impact his performance had upon unit mission accomplishment. 

Evidence  fzom  his  reporting chain  clearly proves  the  contested 
OPR  is  not  an  accurate  or  just  appraisal  of  his  performance 
duriGg the contested rating period.  As  a result, his  selection 
record  and  record  of  performance  were  in  error  when  he  was 

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95-02 19 1 

considered  for  promotion  by  the  CY91B  (and  later)  lieutenant 
colonel boards. 

The top document reviewed by his senior rater for his PRF for the 
CY91B lieutenant colonel board was the tainted OPR.  At the time 
he  was  serving  in  Turkey  and  there  was  no  way  that  he  could 
provide his own input into this process.  The result is clearly a 
tainted  PRF as  it does not  fully reflect his  performance-based 
potential.  Based  on  the  evidence of  his  superior performance, 
request that his PRF for the CY91B board be corrected to reflect 
award of a "Definitely Promote" recommendation. 

The  selection  boards  which  considered  his  file  were  held  in 
violation  of  statute  and  DOD  directive. 
Each  violation  of 
statute and directive involved a  specific provision  designed  to 
afford  him  a  certain  element  of  "protection"  by  requiring 
specific procedures  to  ensure  selection boards  operate  fairly. 
In his case, the majority consensus of his jury  (board members) 
was never developed, his jury members  (board) were never told of 
findings,  and  his  jury  (board members)  were  never  shown  the 
product  of  their  labors  (the  recommended  list). 
Therefore, 
request that his nonselections for promotion be set aside. 

Had it not been  for the tainted OPR, his record would have been 
competitive  for  a  "Definitely  Promote" recommendation  and  he 
A 
would  have  been  selected  by  the  original  central  board. 
Special Selection Board  (SSB) cannot fairly assess his record for 
promotion  because  of  the  tainted  record  sampling  and  the  fact 
that  the  scoring  system  itself  is  arbitrary  and  capricious. 
Therefore, request his  records be  corrected to direct promotion 
to lieutenant colonel as if selected by the CY91B board. 

The  decorations portion  of  his  file was  incomplete when  he  was 
considered  for  promotion.  Specifically, the  citation  for  the 
MSM,  basic  award, was missing  from the  file; the  start date on 
the AFCM should have been 1 February 1989 rather than 9 September 
1986, and  the  AFCM  should be  upgraded  to  an  MSM;  and  the  MSM 
(Second Oak Leaf Cluster) covering the period 7 Dec 90 to 13 Dec 
91,  was  not  approved  until  1994  and  was  not  processed  in 
accordance with the governing regulation. 

In  support  of  his  request,  applicant  provided  his  13-page 
statement,  with  11  attachments,  which  included  documentation  -. 
pertaining to award of the Bronze Star Medal on 20 November 1991, 
covering  the period  16  January  to  28  February  1991; supporting 
statements from several senior commanders, a previous rater and a 
subsequent  rater;  documentation  pertaining  to  unit  awards  and 
wing standardization evaluation, and a document entitled "Illegal 
Air Force Selection Boards:  Documentary Summary." 

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95-02 19 1 

STATEMENT OF FACTS: 

On  17  May  1975,  applicant was  appointed  as  second  lieutenant, 
Reserve of the Air Force.  He was voluntarily ordered to extended 
active  duty  on  18  July  1976.  He  served  on  continuous  active 
duty,  and  he  was  integrated  into  the  Regular  component  on  15 
March 1985, and progressively promoted to the grade of major. 
A resume of applicant’s OERS/OPRS follows: 

PERIOD CLOSING 

OVERALL EVALUATION 

28 Feb 77 
31 Aug 77 
28 Feb 78 
28 Jun 78 
28 Dec 78 
8 Dec 79 
8 Jun 79 
26 Jul 80 
3 Jun 81 
20 Jan 82 
25 Jun 82 
25 Jun 83 
12 Jun 84 
12 Jun 85 
12 Jun 86 
12 Jun 87 
12 Jun 88 
31 Jan 89 
30 Sep 89 
30 Sep 90 
* 
29 Apr 91 
10 Nov 91 
# 
** 
10 Aug 92 
17 May 93 
# #  
***  17 May 94 
17 May 95 

3-3-3 
3-3-3 
2-2-2 
2-2-2 
2-x-2 
1-1-1 
2-x-2 
1-x-1 
Education/Training Report 
1-x-1 
1-x-1 
1-1-1 
1-1-1 
1-1-1  (W/LOE) 
1-1-1 
1-1-1 
1-1-1 
Meets Standards (MS) 
MS 
MS 
MS 
MS 
MS 
MS 
MS 
MS 

*  Contested report  (see copy at Exhibit B). 
#  -  Top  report  in  file  when  considered  and  nonselected  for 
promotion by the CY91B Lt Col Board which convened on 2 Dec 91. 
**  -  Top  report  in  file  when  considered  and  nonselected  for 
promotion by the CY92B Lt Col Board which convened on 16 Nov 92. 
# #   -  Top  report  in  file  when  considered  and  nonselected  for 
promotion by the CY93A Lt Col Board which convened on 12 Oct 93. 
***  -  Top-report  in  file  when  considered  and  nonselected  for 
promotion by the CY94A Lt Col Board which convened on 11 Oct 94. 

The records reflect applicant received the following decorations: 

t 
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MSM  for outstanding noncombat meritorious serving during the 
period  15  November  1978  to  5 March  1979,  awarded  per  Special 
Order GB-10, dated 6 February 1980. 

Joint  Service  Commendation  Medal  for  meritorious  service 
during  the  period  25  June  1981  to  12  July  1984,  awarded  per 
Special Order GB-56, dated 30 July 1984. 

MSM  (1OLC)  for  outstanding  noncombat  meritorious  service 
during the period  9 September 1986 to 31 January  1989, awarded 
per Special Order GB-82, dated 22  August 1989. 

AFCM  for meritorious  service during  the period  1 February 
1989 to  16 November  1990.  (Examiner's  Note:  The  citation  in 
applicant's  selection  folder  reflects  the  inclusive  dates  of 
9 September 1986 to 16 November  1990.  However, the copy of the 
citation on the microfiche records reflects the dates 1 Feb 89 to 
16 Nov 90.) 

Bronze  Star  Medal  for  meritorious  achievement  during  the 
period  16 Janqary -  28  February 1991, awarded per  Special Order 
GA-139, dated 20  November 1991. 

MSM  (2OLC)  for  outstanding  noncombat  meritorious  service 
during  the period  7 December  1990 to  13 December  1991, awarded 
per Special Order GA-48, dated 11 May 1994. 

MSM  (30LC) for outstanding service during period  9 January 
1992  to  31  July  1996,  awarded  per  Special  Order  GA-58,  dated 
19 April 1996. 

On  31  July  1996, applicant was  honorably  relieved  from  active 
duty and retired effective 1 August 1996 under the provisions of 
AFI  36-2303.  He was  credited with  20 years and  13 days  active 
service for retirement. 

A I R   FORCE EVALUATION: 
The Operations, Selection Board Secretariat, AFMPC/DPPB, provided 
comments  addressing  applicant's 
contentions  pertaining  to 
DPPB  stated  this  application 
"Defective  Selections  Boards. " 
contains faulty logic, incorrect statements, accusations without 
merit, directives/statute/regulations  taken out of context and is 
fully unfounded.  Their comments, in part, follow. 

DPPB  disagreed  with  applicant's  contentions  that  his  promotion 
boards were in violation of Sections 616 and 617, 10 USC,  stating 
Air Force legal representatives have reviewed their procedures on 
several occasions during the past  few years and have determined 
thos? procedures comply with the applicable statute and policy. 

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As  to  applicant's  argument the Air  Force has neither developed 
nor  issued  standard operating procedures for selections boards, 
DPPB disagreed stating upon the 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.  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 conducting promotion boards. 
All  Air  Force  promotion  boards  comply  with  DODD  1320.09  and 
1320.12  (which superseded  1320.09). 
Each  competitive category 
competes only  within  itself,  Le.,  the  chaplain eligibles only 
compete  against other  chaplains, and  the  nurse  corps eligibles 
only  compete  against  other nurse  corps eligibles.  Never  would 
two different competitive categories compete against each other. 
Thus, it should be perfectly clear why the board members for each 
competitive  category  are  permitted  to  depart  after  they  have 
completed  their  responsibilities  and  do  not  remain  until  all 
other 
their 
responsibilities. 
They  then  consolidate  each  competitive 
category results into a single board  report for presentation to 
the Secretary of the Air Force. 

competitive 

completed 

categories 

have 

The  actions/responsibilities  of  each  board  president  are  in 
compliance with statute and policy. 

DPPB  disagreed  with  applicant's  contention  that  an  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. 

Applicant's  statement "a  majority of the members of the original 
board  never  concurred  the  full  below  the  promotion  zone  quota 
should be used" is incorrect.  Every board member scoring a given 
competitive category was involved in the BPZ displacement process 
that determined whether the full BPZ quota would be used for that 
competitive category. 

Regarding  applicant's  contention 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  records  is  important. 
Because  the 
benchmark records are very  similar in quality  (having come from 
the same score category of the original board), it is not unusual 
to  have  some  inversion  in  the  benchmark  order  of  merit  (OOM) 
created by the SSB.  Whenever the inversion is of a nature where 
a  nonselect benchmark  record  receives the  highest  score by  the 
SSB  and the consideree's  record receives the  same score or even 
the  second highest  score, L e . ,  beats  all  the  select benchmark 
records,  the  nonselect  benchmark  record  and  the  consideree' s 
record are returned to the board members for rescoring.  If the 

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consideree' s record  scores higher  than the nonselect benchmark, 
the consideree will be  a  select.  Regardless of  the situation, 
SSB members are not informed which  record is a benchmark record 
or a consideree record. 
The complete evaluation is at Exhibit C. 

The AF Evaluation Board Recorder, AFPC/DPPPEB, provided comments 
addressing  applicant's  request  that  his  CY91B  PRF  rating  be 
changed from "Promote" to "Definitely Promote ."  DPPPEB stated a 
PRF  should  mirror  the  officer's  entire  record  of  performance 
(ROP) and  is  considered  to  be  an  accurate  assessment  of  the 
officer's  performance when it is rendered.  The applicant has not 
provided support from his senior rater or Management Level Review 
(MLR) president or submitted a new PRF indicating a "Definitely 
Promote" rating.  Lastly, the request to have the OPR closing out 
29  April  1991  declared  null  and  void  has  not  been  approved. 
DPPPEB recommended applicant's  request be denied; however, if the 
applicant  provides  justification  as  stated  above,  he  should 
resubmit his request to have his.PRF rating changed.  (Exhibit D) 

The  Air  Force  Management  Level  Review  Recorder,  AFPC/DPPPEB, 
recommended denial of  applicant's  request that his  PRF for the 
CY91B  lieutenant  colonel  board  be  upgraded  to  reflect  a 
"Definitely Promote, "  stating the  applicant was  unsuccessful in 
his  request  (to the Officer  Personnel Records Review Board)  to 
have  the  OPR  closing  29 April  1991  removed; therefore, the  PRF 
should  stand. 
As  an  alternative  to  the  PRF  upgrade,  the 
applicant has petitioned the board for 60 days following removal 
of the contested OPR to obtain additional support to correct the 
PRF.  Recommend  approval  of  this  request  if  the  applicant  is 
s'uccessful in  his  attempts  to  have  the  contested  OPR  removed. 
(Exhibit E) 

The  Evaluation  Procedures  Section,  AFMPC/DPPPEP,  provided 
comments addressing applicant's  request to remove the OPR closing 
29 April 1991 from his records. 

DPPPEP  stated there are no provisions in the governing regulation 
that support removing an OPR based on how well previous reports 
are  written.  Because  of  the  strong  support  on  behalf  of  the 
applicant  offered  by  several  highly  respected  senior officers, 
DPPPEP contacted the rater of the contested report to discuss the 
performance assessment of  the OPR  in question.  He  (the rater) 
made the following comments concerning confirmation of whether or 
not  the  performance  assessment he  rendered on  applicant was  an 
accurate  assessment:  "The OPR  on  [applicant]  is  considered an 
accurate performance assessment.  I articulated this to Col S--- 
(Reviewer on OPR)  by  emphasizing  the  fact  that  [applicant] had 
many  strengths  and  performed  outstandingly  in  several  areas; 
however, when assessing his total performance, he was not one I 
would  recommend for Senior Service School  (SSS) or to command a 
squadron."  The rater was then informed of the strong letters of 
support  alluded  to  above. 
He  indicated  that  those 

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recommendations  (with which  he  was  familiar) did  not  alter his 
view . 
In  their  conclusion,  DPPPEP  stated  a  review  of  the  documents 
provided does not reveal a violation of regulatory provisions or 
indicate the OPR is technically flawed.  Although  the applicant 
has received strong indorsements from several senior officers in 
his command, the rater-who, in DPPPEP's  opinion, is in the best 
position to accurately assess an officer's  performance, expressed 
beyond  a doubt that his performance assessment of  the applicant 
was indeed accurate.  Based on these factors, DPPPEP recommended 
applicant's  request to remove the OPR be denied. 

The complete evaluation is at Exhibit F. 

The Staff Judge Advocate, AFPC/JA, reviewed this application and 
recommended denial.  Their comments, in part, follow. 

Regarding  the  first  basis  for  applicant's  claim  for  relief 
(defective record), JA  concurred  with  the  evaluations submitted 
by AFPC/DPPPEP  and DPPPEB  (Exhibits E and  F, respectively).  As 
applicant  has  failed  to  prove  that  the  OPR  in  question  is 
incomplete or  otherwise  inaccurate, there  exists  no  'taint"  to 
the CY91B PRF that requires correction.  JA likewise rejects his 
argument  that  the  selection  boards  which  considered  him  were 
defective. 

The bulk  of applicant's  submission is the latest version of the 
canned  brief  attacking  the  Air  Force's  promotion  system.  The 
author, as a centerpiece of his presentation, continues to want 
to debate a 1992 AF/JAG legal opinion.  In so doing, he seems to 
insist that that opinion-which was never even written in response 
to his  present  argument  or  the  issue he  has  raised-constitutes 
the sole Air  Force position on the matter.  To clarify one more 
time,  the  AF/JAG  opinion  of  26  Feb  92  was  never  written  to 
respond  to  the  author,  and  they  (and the  Air  Force)  are  not 
relying  on  it as the  sole basis  for any  response.  Indeed, the 
author  himself  has  hit  the  nail  on  the  head  in  his  final 
statement of the narrative of Tab 3 ,   Atch  2 of his  "Documentary 
Summary":  Therefore,  the  AF/JAG  opinion  is  irrelevant  to  my 
application f o r   correction of records." 
Noting  applicant's  argument  that  A i r   Force  promotion  boards  - 
violate  10 USC  616 and  617, JA stated there is no provision of 
law that specifically requires each member of a promotion board 
to personally  review and score the record of each officer being 
considered  by  the  board.  The  House  Armed  Services  Committee 
Report  (97-141) that  accompanied  the  Defense  Officer  Personnel 
Management  Act  (DOPMA)  Te'chnical Corrections  Act  (PL  97-22) 
specifically  references  panels  as  a  type  of  administrative 
subdivisioa of selection boards.  Consequently, it is clear that 
at the  time  DOPMA was  enacted, Congress was  certainly aware  of 
the ;existence of promotion board panels and expressed no problem 
with  them.  Furthermore, language of 10 USC  626(a) and  (c) (the 

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95-02191 

recommendation for promotion  of  officers  by  selection boards), 
not just  617(a)  (the certification by a majority of the members 
of  the  board),  speaks  to  the  corporate  board  and  not  to 
individual members.  In essence,  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 promotion."  The members are 
not  required  to  reach  this  point  through  an  individual 
examination of  every  record, although  they may  do  so. 
Rather, 
based 
on  their  overall  participation  in  the  board's 
deliberations, and the fact that the process involves the random 
assignment  of  officer  selection  records  to  panels  to  achieve 
relatively  equal  quality  and  procedures  to  insure  that  the 
quality  of  the  records  of  those  officers  recommended  for 
selection is essentially identical, the members are in a position 
to honestly certify that the process  in which  they participated 
properly  identified,  based  on  the  record  before  them,  those 
officers who were best qualified for promotion.  In JA's  opinion, 
that  is  enough  to  assure  compliance  with  all  the  statutory 
requirements. 
After  citing  the  relevant  portion  of  DODD  1320.12,  JA  stated 
applicant's  argument  that  the  Air  Force  promotion  board  was 
illegal because the Air  Force convened a  single board consisting 
of panels  rather  than  convening separate boards  as  required by 
It  is  clear  that  the 
the  DOD  Directive,  is  without  merit. 
directive's  purpose  in  requiring  separate  boards  for  each 
competitive  category  is  to  insure  that  these  officers  compete 
only  against others  in  the  same  competitive  category-to  assure 
fairness and  compliance with  Title  10, Chapter 36  (particularly 
nomenclature 
Section 
notwithstanding,  the  Air  Force's  competitive  category  panels, 
which  are  convened  concurrently as  permitted  by  the  Directive, 
fully  accomplish  this  stated  purpose;  i.e.,  members  of  each 
competitive category compete within  their  respective panel  only 
against other officers of that same category.  Thus, the panels 
operate  as  separate  boards  for  purposes  of  the  DOD  Directive. 
More  importantly, they  fulfill all  the  requisite  statutory  and 
regulatory requirements. 
JA disagreed with  applicant's  argument as  error the autonomy  of 
the  panel  operation  and  board  president  in  the  Air  Force 
promotion  process,  in  particular,  his  argument  that  the  board 
president's  duties  in  the  Air  Force  process  violates  DOD 
Directive 1320.12, Section H, para 1.  The duties prescribed  for 
board presidents by Air Force directives do require the president 
to  perform  several  critical  duties  relative  to  board  scoring. 
Those duties do not, however, in any manner, constrain the board 
from  recommending  for  promotion  the  best  qualified  among  the 
fully qualified officers being considered.  Applicant has offered 
no proof  that  the president  of this  or any Air  Force  selection 
boar4  has  ever  acted  contrary  to  law  or  regulation.  In  the 
absence  of  evidence  to  the  contrary,  the  board  president  and 

requirements) . 

621 

In 

truth, 

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other members of the board are entitled to the presumption that 
they carried out  their duties and  responsibilities properly  and 
according to law. 

In  his  next  assignment  of  error,  applicant  claims  that  his 
nonselection cannot be remedied by SSB because  (1) the benchmark 
records  that  would  be  used  in  an  SSB  are  invalid  because  the 
original promotion boards  that  rendered them were  illegal, and 
(2) scoring procedures used by Air  Force SSBs are arbitrary and 
capricious.  JA stated they cannot address these issues without 
first  reiterating  their  strong  belief  that  applicant  has  not 
provided a timely or meritorious application warranting the need 
for any relief.  As  for the merits of these claims, JA concurs 
with DPPB  (Exhibit C) in its advisory.  In JA's  opinion, the Air 
Force's  SSB procedure  fully comports with  the  10 USC  628(a) (2) 
requirement that an officer's  "record 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 were 
not  recommended  for  promotion,  by  the  board  that  should  have 
considered  him. " 
The  burden  is  on  the  applicant  to  prove 
otherwise, and he failed to do s o .  
As  to  the  request  for  direct  promotion, both  Congress  and  DOD 
have  made  clear  their  intent  that  errors  ultimately  affecting 
promotion should be resolved through the use of SSBs.  Air  Force 
policy  mirrors  that  (AFR 36-89, para  33a).  Moreover,  JA  has 
repeatedly  agreed  with  AF/JAG  (see OpJAGAF  1994/17)  that  the 
AFBCMR  is  not  in  the  appropriate  position  to  grant  a  direct 
promotion-that  in  promotion  matters,  the  Board's  statutory 
authority should be limited to correcting military records which 
may  have  affected  the  promotion  process,  and  recommending  SSB 
consideration in appropriate cases.  The United States Court of 
Federal Claims concurs in this, F i n k e l s t e i n   v .   U n i t e d   S t a t e s ,   29 
Fed.C1.611(1993).  Otherwise, the AFBCMR-which is not compromised 
in accordance with  10 USC 612 and has no basis for comparing an 
applicant's  record  with  those  of  his  competitors-would  be 
essentially usurping the statutory power of promotion boards. 

The complete evaluation is at Exhibit G. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant restated his contentions that the contested OPR is both 
an incomplete and unjust portrayal of his performance and, as a 
result,  his  record  was  tainted  during  the  PRF  process. 
He 
therefore requests that the PRF be corrected to reflect award of 
a  "Definitely Promote" recommendation for  the  CY91B  lieutenant 
colonel board. 

He  also  reiterated  his  contentions  that  the  selection  boards 
which considered his file for promotion were in violation of the 
law,  directives  and  regulation. 
He  further  restated  his 

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contention  that  an  SSB  cannot  fairly  assess  his  record  for 
promotion. 

Applicant  further contends that  the  decorations portion  of his 
file was  clearly in error when he  was  considered at the CY91B, 
CY92  and  CY93  lieutenant  colonel  boards. 
Specifically,  the 
citation  for his  MSM,  basic  award,  was  not  posted  in his  file 
although it was printed on the selection brief.  As a result, his 
file was  incomplete as this  document  recognized  several of his 
unique duty achievements. 

Two other problems are apparent in the decorations portion of his 
folder.  First, the  citation for the AFCM  should reflect "from 
1 February  1989  to  16  November  1990" instead  of  stating  on 
9 September 1986.  He was not assigned to the lSt S--- Wing until 
1 February  1989. 
This  is  a  minor  administrative  correction. 
However,  it  would  be  more  appropriate  to  not  only correct  the 
dates of this award but also upgrade it to a MSM.  A  review of 
his officer performance reports during this time will clear any 
doubts  as  to  his  worthiness  of  this  award. 
Second,  the  MSM 
[Second Oak Leaf Cluster, covering the period 7 Dec 90 to 13 Dec 
911  was not approved until 1994.  If the award had been processed 
as required by  regulation, this document could have been in his 
file for his  first consideration and definitely be  in his  file 
for his  subsequent considerations for lieutenant colonel.  This 
citation was not posted until after the 1994  lieutenant colonel 
board. 

Applicant contends that the evidence proves that his  record was 
defective  when  considered  by  the  original  CY91B  and  later 
lieutenant colonel boards and  the CY91B  and  later MLEBs.  As  a 
result  of  a  tainted  file,  he  was  not  able  to  compete  for  a 
"Definitely  Promote''  in  the  recommendation  process  or  at  the 
central board as all considerations were all based upon a faulty 
record . 
In  support  of  his  request,  applicant  provided  his  25-page 
response to the advisory opinions, with a copy of the contested 
AFCM  citation and a proposed upgraded citation, and a AFPC/JA and 
AF/JAG comparison chart.  (Exhibit I) 

ADDITIONAL AIR FORCE  EVALUATION: 
The  Recognition Programs Branch, AFPC/DPPPRA,  provided  comments 
addressing  applicant's  request pertaining  to  the  AFCM.  DPPPRA 
stated  applicant has  not  offered  any  evidence  that  he  applied 
through  administrative channels  to  have  the  start  date  of  the 
AFCM  changed from 9 Sep 86 to 1 Feb 89.  Nor has he furnished any 
documentation  to  substantiate  that  his  AFCM  should  have  been 
submitted -as  a  recommendation  for  an  MSM  or  evidence  that  he 
atte,mpted to have the decoration upgraded through administrative 
channels.  (Exhibit J) 

10 

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t 

95-02 19 I 

The Evaluation Programs Branch, AFPC/DPPPE,  reviewed applicant's 
response to the advisory opinions and found no evidence that the 
contested  OPR  is  flawed. 
Therefore,  their  original 
recommendation  (Exhibit F)  to  deny  this  request  still  stands. 
DPPPE stated that although the applicant has submitted supporting 
documentation from general officers above his senior rater, they 
believe  the  evaluators  (rater/senior  rater)  on  the  OPR  in 
question were in the best position to make an -assessment of the 
applicant's  performance.  Unless there is substantiated evidence 
that violates the intent and principles of AFR 36-10,  the OPR in 
question is considered an accurate assessment at the time it was 
made a matter of record.  (Exhibit K) 

The Operations, Selection Board Secretariat, stated a comparison 
of  applicant's  response  to  the  advisory  opinions  with  the 
original  application  reveals  no  new  meaningful  information. 
Rather,  the  same  opinions, accusations  and  interpretations are 
merely restated.  Therefore, their previous advisory  (Exhibit C) 
is still valid.  (Exhibit L )  
The  Senior  Attorney-Advisor,  AFPC/JA,  reviewed  applicant's 
rebuttal to the advisory opinions and recommended the application 
be  denied  stating the  applicant has  failed  to present  relevant 
evidence  of  any  error  or  injustice  warranting  relief. 
JA's 
comments, in part, follow. 

In JA' s opinion, they have  satisfactorily addressed applicant's 
arguments  that  the  Air  Force's  promotion  system  operates  in 
violation  of  federal  law  and  DOD  Directive  in  their  earlier 
advisory  (Exhibit G) . 
Nevertheless,  they  are  commenting  on 
several  points  made  in  applicant's  most  recent  submission. 
First,  the  author misunderstands  JA's  view  with  regard  to  the 
1992 AF/JAG opinion.  They have never rejected the AF/JAG opinion 
or  the  rationale  expressed  therein;  rather,  they  have  simply 
never  relied  on  it  as  the  total  "Air  Force  position" on  the 
subject.  It  is  in  that  sense,  and  that  sense alone,  that  JA 
considers the 1992 opinion irrelevant to the applicant's  appeal. 
Indeed as pointed out by the author of applicant's  rebuttal, they 
agree with the AF/JAG opinion-but only as far as it goes.  That 
is the point.  That opinion was not  written  in response to the 
author's  arguments and  was  therefore never  intended  to  address 
all of the  author's  allegations.  In particular  (as the  author 
himself has emphasized over and over again), that opinion did not 
specifically  address  Section  616  of  Title  10. 
The  opinions 
expressed in the AFPC/JA advisories, on the other hand, have been 
written  directly  in  response  to  the  author's  various  canned 
briefs.  Although they encompass the AF/JAG rationale, they have 
extended them to address the Section 616 argument and otherwise 
modified each slightly to better explain their position in light 
of  the  author's  concerns. 
JA  did  not  find  it  necessary  to 
further address in more detail some of the specific points urged 
by  tbe author in this case.  JA stands by  its earlier  advisory 
(at Exhibit G) 

' 

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JA stated the quotation offered by the author, which he excerpted 
from  an order dated  January  19, 1996, in  the  case of Shall  v .  
United  States,  No.  94-618C,  was  taken  out  of  context  and  is 
clearly misleading.  The judge in that order prefaced his remarks 
by  stating  that  the  court  found  itself  in  need  of  additional 
information  in  order  to  properly  evaluate  the  arguments  the 
plaintiff had  raised  regarding  the  lawfulness of the Air  Force 
Following  the  language  quoted  by  the 
promotion  process. 
applicant,  the  judge  described  his  quandary  with  regard  to  a 
problem he perceived was possible in the Air Force panel system, 
and he concluded his description of his concerns by stating: 

Given  the  above  described  problem,  the  question  that 
needs  to  be  answered  is  whether  the  Air  Force  is 
cognizant  of  the  problem  its  selection  mechanics 
present and, if so,  how the problem is addressed.  What 
steps  does  the  Air  Force  take,  following  the 
identification  of  each  panels  list  of  recommended 
promotees, to overcome the  "promotion error" that  the 
panel system gives rise to? 

In  response  to  that  order,  the  United  States  Department  of 
Justice filed a brief and declarations explaining why the judge's 
concern does not constitute an error or problem and detailing the 
safeguards built  into the Air  Force  system.  In their opinion, 
these  documents should  fully satisfy the  judge and  resolve his 
concerns. 

Noting that the author of the rebuttal stated that mention of the 
reference to panels in the DOPMA Technical Corrections Act was an 
attempt  to  mislead  the  Board,  JA  stated  they  have  never 
maintained that the mention of panels in the legislative history 
constituted an  exhaustive discussion or  unequivocal  indorsement 
of  the  Air  Force  promotion  system. 
JA  believes  that  that 
language constitutes  a  recognition by  Congress  that  the  use  of 
panels  as  a  general methodology was  acknowledged and  approved. 
Given  the fact that  at the time this  language was  adopted, the 
Air  Force was  the  only  service using  a  true panel  system.  JA 
does  not  believe  it  is  unreasonable  to  conclude  that  this 
language expressed on the part of Congress no major objection to 
the system utilized by the Air Force.  Even if such a conclusion  . 
were not true, however, they have nevertheless provided in their 
previous advisory (Exhibit G )   a complete rationale to support the 
panel system used by the Air Force. 

With regard to the duties of the board president in the Air Force 
promotion  system, the  contentions offered by  the author  of  the 
applicant's  rebuttal  letter  are  utterly  without  merit. 
The 
applicant has  offered absolutely no evidence that the president 
of this applicant's  promotion board or the president of any other 
Air ;Force  promotion  board  ever  acted  contrary  to  law,  DOD 
Direktive, or Air  Force  regulation.  The  duties prescribed  for 

12 

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f 

95-02 19 1 

the president of an Air  Force boaxd are entirely within the law 
and  governing  directives,  and  the  board  president  is  sworn to 
uphold  those duties-which include the  fact that he  or  she must 
take no action to determine any matter that would  constrain the 
board  from  recommending  for  promotion  those  officers  best 
qualified to meet the needs of the service. 
Even  if  one  were  to  agree  with  applicant's  specious arguments 
alleging  the  violation  of  governing  directives  by  Air  Force 
officials  charged  with  management  of  the  promotion  system,  it 
does  not  follow  that  the  remedy  for  such  behavior  would-or 
should-include this applicant's  promotion.  Applicant has failed 
to present any evidence whatsoever that the systematic errors he 
claims were responsible for his promotion nonselection. 
The complete evaluation is at Exhibit M. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Applicant  requests  that  the  board  dismiss  all  the  advisory 
opinions provided on his case.  He  stated that since filing his 
initial rebuttal, he queried AFPC for various documents that were 
relevant to his petition.  Included in his request were documents 
reflecting all aspects of the alleged AFPC conversation with his 
former rater and  other evaluators, documents reflecting various 
claims  the Air  Force  has made  regarding the promotion process. 
What  he  found,  however,  was  the  deliberate  destruction  of 
information and  confirmation the  key  elements of  all the  staff 
advisories were not based on fact. 

Applicant  reiterated  his  contentions  that  the  contested  OPR 
should  be  removed  from  his  records  and  that  the  tainted  OPR 
tainted the promotion recommendation process. 

Applicant reaffirmed his request that the AFCM citation should be 
amended  to  reflect "from 1  February  1989  to  16 November  1990." 
He also stated that AFPC has not commented on the fact that his 
MSM  for  1991  should have been  in his  file long before  the  1994 
lieutenant colonel board.  The dates in this report are also in 
error  and  should  be  corrected  although  AFPC  has  provided  no 
comment on this issue.  Applicant requests that the board correct 
the  decoration  portion  of  his  file  and  grant  him  SSB 
consideration. 

Applicant  noted  that AFPC  has  failed to comment  further on  the 
issue  of  selection board  compliance with  statute  and  directive 
which  is actually  quite  simple and  not  an  arcane  legal debate. 
He  provided  additional  comments  contending  that  the  selection 
boards were  in violation of  statute and DOD Directive and cited 
various  court  decisions  in  support  of  his  appeal. 
He  also 
reitprated his request for direct promotion arguing that an SSB 
cannot fairly assess his record for promotion. 

13 

95-02 19 1 

Applicant's  11-page response, with attachments, is at Exhibit 0. 

THE  BOARD  CONCLUDES THAT: 
1. 
law or regulations. 

The applicant has exhausted all remedies provided by existing 

2.  The application was timely filed. 

3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice 
warranting  removal  of  the  OPR  closing  2 9   April  1991  from 
applicant's  records.  It appears that applicant believes that the 
contested  report  is  an  incomplete  and  unjust  portrayal  of  his 
performance.  He  also states that  the report is not  consistent 
with his previous reports.  We note the supporting documentation 
submitted  with  this  appeal  and  note  the  disagreement  these 
individuals  have  with  the  contested  report. 
However,  these 
individuals  were  not  in  the  position  to  observe  applicant's 
performance during  the  entire period.  While  the  applicant may 
disagree with  the  rater's  assessment, this  is not  a  sufficient 
basis upon which  to conclude that the report is inaccurate.  In 
addition, we note that the applicant has failed to show that the 
rater or additional rater were biased in their assessments of his 
performance.  Applicant notes that the Air Force stated that they 
contacted  the  rater  and  he  (rater)  indicated  the  report  in 
question  was  an  accurate  assessment  of  his  performance. 
The 
applicant appears to be  questioning this and notes that the Air 
Force does not have a statement from the rater.  This Board took 
note of the Air Force's  comments; however, these comments are not 
the reasons we  concluded  that  the  report should not be  removed 
from applicant's  records.  Applicant, based  on  the  evidence  of 
record, has not  shown that  the individuals who were  responsible 
for  assessing his  performance  rendered  an  inaccurate or  unjust 
report during the period  in question.  In view of the above, we 
do not recommend voidance of the contested report.  Based on this 
finding, applicant's  request pertaining to the PRF for the CY91B 
selection  board  is  a  moot  issue. 
Applicant's  allegations 
concerning  the  legality  of  the  promotion  boards  are  noted; 
however,  the  detailed  comments provided  by  the  appropriate Air 
Force  offices  more  than  adequately  address  these  issues. 
Therefore, we agree with the comments of the Air Force and adopt 
the  rationale express  as the basis  for our  conclusion that  the 
applicant  failed  to  sustain  his  burden  of  establishing  the 
existence of either an error or injustice in regard to selection 
board process. 

4. 
Insufficient  relevant  evidence  has  been  presented  to 
demonstrate-  the  existence  of  probable  error  o r   injustice 
warrqnting upgrading of the AFCM  for the period  9 September 1986 
to 16 November  1990 to an MSM.  We  note  that the applicant has 

14 

95-02191 

not  submitted  sufficient  documentation  showing  that  the  AFCM 
should  have  been  submitted  as  an  MSM. 
Without  evidence  to 
support  upgrading  of  the  AFCM, 
applicant's  request  is  not 
favorably considered. 

5. 
Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice 
warranting  reconsideration  of  the  applicant's 
record  for 
promotion  to  the  grade  lieutenant colonel by  Special  Selection 
Boards  (SSBs) for  the  CY91B  through  CY94A  selection  boards. 
Applicant's  records  were  not  complete  and  up  to  date  when 
considered for promotion by the selection boards in question.  In 
this respect, it appears that the citation accompanying the award 
of the MSM awarded in 1979  was missing; the MSM  for the period 7 
December 1990  to 13  December  1 9 9 1   appears  to have  been delayed 
due to administrative reasons and not approved until  1994;  and, 
the start date of the AFCM  for the period 9 September 1986 to 16 
November  1990  appears to be  incorrect as the applicant was  not 
Based  on 
assigned  to  the  organization until  1  February  1989. 
these  corrections  and  in  view  of  the  fact  that  the  selection 
boards in question did review an inaccurate record which  served 
to deprive the applicant of promotion consideration on a fair and 
equitable basis, we believe  that his corrected record should be 
considered for promotion  to  lieutenant colonel by  SSBs  for  the 
selection boards in question. 

6. 
Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice 
concerning  applicant's  request  to  be  promoted  to  the  grade  of 
lieutenant colonel through the correction of records process.  In 
this regard, we observe that officers compete for promotion under 
the whole person concept whereby awards and decorations are but 
one of many  factors carefully assessed by  selection boards.  In 
addition, an officer may be qualified but, in the judgment of a 
selection board  vested with  discretionary authority to make  the 
selections, may not be the best qualified of those available for 
the limited number of promotion vacancies.  Therefore, we believe 
that  a  duly  constituted  selection board  applying  the  complete 
promotion criteria is in the most advantageous position to render 
this  vital  determination,  and  that  its  prerogative  to  do  so 
should only be usurped under extraordinary circumstances. 

THE  BOARD RECOMMENDS THAT: 
The pertinent military records of the Department of the Air  Force 
relating to APPLICANT, be  corrected to show that the start date 
of  the  Air  Force  Commendation  Medal  (AFCM)  for  the  period 
9 September  1986  to  16  November  1990  be  changed  to  1  February 
1 9 8 9 .  
It  i,s  further  recommended  that  his  records,  to  include  the 
citat'ion accompanying the award of the Meritorious Service Medal 

15 

95-02 19 1 

awarded in 1979 and the Meritorious Service Medal for the period 
7  December  1990  through  13  December  1991,  be  considered  for 
promotion to the grade of lieutenant colonel by Special Selection 
Boards  for  the  Calendar  Years  1991B  through  1994A  Central 
Lieutenant Colonel Boards. 

The following members of the Board considered this application in 
Executive  Session on  15 December  1997, under  the provisions  of 
AFI 36-2603: 

Mr. Charles E. Bennett, Panel Chair 
Mr. John L. Robuck, Member 
Mr. Gregory H. Petkoff, Member 

All members  voted  to correct the  records, as recommended.  The 
following documentary evidence was considered: 
DD Form 149, dated 3 Jul 1995. 
Applicant's Master Personnel Records. 
Letter, AFMPC/DPPB, dated 25 Sep 1995. d' 
Letter, AFPC/DPPPEB, dated 13 Nov 1 9 9 5 . d  
Letter, AFPC/DPPPEB, dated 17 Nov 1995. 
Letter, AFMPC/DPPPEP, dated 27 Dec 1995. 
Letter, AFPC/JA, dated 4 Jan 1996.  I /  
Letter, AFBCMR, dated 29 Jan 1996. 
Applicant's  25-Page Response, dated 29 Mar 1996. 
Letter, AFPC/DPPPRA, dated 26 April 1996. A 
Letter, AFPC/DPPPE, dated 10 May 1996. + 
Letter, AFPC/DPPB, dated 17 May 1996. 
Letter, AFPC/JA, dated 31 May 1996.4 
Letter, AFBCMR, dated 10 Jun 1996. 
Applicant's  11-Page Response, dated 15 Aug 1996. 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G . 
Exhibit H. 
Exhibit I. 
Exhibit J. 
Exhibit K. 
Exhibit L. 
Exhibit M. 
Exhibit N. 
Exhibit 0. 

CHARLES E. BENNETT 
Panel Chair 

16