AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

REt'lORD 3F PROCEEDXNGS 

IN THE MATTER OF: 

DOCKET NUMBER:  96-10004 
COUNSEL : 
HEARING DESIRED:  YES 

-NO  1 3  1998 

APPLICANT REOUESTS THAT: 

1.  His nonselection for promotion to the Reserve grade of major 
general by the CY90 Air Force Reserve General Officer Selection 
Board, which convened on 26 October 1989, be declared void. 

2.  His  records  be  corrected  to  reflect  he  was  selected  for 
promotion to the Reserve grade of major general by the CY90 Air 
Force Reserve General Officer Selection Board, which convened on 
26 October  1989; and, that  he  was  thereafter promoted  with  an 
appropriate date of rank. 

3.  His  retirement  as  a  Reserve  brigadier  general,  effective 
12 March 1991, be declared void. 
4.  His  records  be  corrected  to  reflect  his  retroactive 
restoration to active Reserve status, effective 12 March 1991. 

5.  He be  awarded' the requisite number of points and pay  since 
12 March  1991  (a minimum  of  50 points  for each retirement year 
since March 1991). 

6.  Any  further  relief  as  may  be  deemed  necessary  and/or 
appropriate in order to accord full and complete relief. 

APPLICANT CONTENDS THAT: 

His failure of  selection for promotion to the Reserve grade of 
major  general  by  the  26 October  1989  Reserve  General  Officer 
Selection Board  was materially  and  legally in error and unjust 
for the following reasons: 

1.  He was not  considered on a  "fair and equitable basis", and 
"without  prejudice  or  partiality"  in  violation  of  10  U. S. C. 
9362(d)  and  the  specific  instructions  issued  to  the  1989 
selection board were  improperly and unduly influenced by having 
received a  "priority list,' of  officers being  considered by  the 
1989 selection board, which was formulated prior to and/or at a 
\\conferenceN and/or "special meeting" of general officers held on 
20 and 21 September 1989 in the Pentagon, under the auspices of 

the Chief of Air Force Reserve add with the apparent concurrence 
of at least the Deputy Chief of Staff for Personnel (DP). 

2.  One of the "conferees" 
USAFR) at the 20- 
21 September 1989  conference had  access to the  "priority list" 
and  discussions  pertinent  thereto,  as  evidenced  by  his 
participation in the conference, served as a voting member of the 
1989 selection board. 

3 .   Prior to the convenin 
of the Air Force 
Reserve members 
1989  selection board  and 
"priority list. 
4.  Three  ( 3 )   of the "conferees"  ( 

on board, the Chief 
met with the three 
qf the 26 October 
things, showed  them  his 

-was 

at the 20-21 September 1989  conference who had  access to 
"priority list" and the discussions pertinent thereto, were 
in fact selected for promotion by  the  1989 selection 

considered for promotion by the 1989 selection board, and one 
board. 
5.  The results of  the action bv  the  1989 select-is, &.board  were 
made  known  to,  at  least, 
and  the 
Secretary  of  the  Air  Force 
before  the 
selection board adjourned.  w 

6.  At least two of the officers 
and 
and  selected for promotion by  t 
sel 
have been deemed not  "fully qualified" and no 
for promotion because  one  of  the  candidates 
served for a period of six months in a major 

considered 
ard  should 

AFR 45-34, paragraph 7.b(3), and the other candidate 
had  been  convicted  of  the  misdemeanor  offense  of 
er the influence of alcohol over three years earlier, 
serving two days in jail, being fined $700 and other conditions, 
which were suspended for a period of three years. 
7.  The manner in which he was considered was contrary to and in 
violation of Department of Defense (DoD) and Congressional policy 
to insure the "independence and integrity of selection boards." 
8.  His  failure  of  selection  for  promotion  is  materially  and 
legally  in  error  and  unjust  in  light  of  his  professional 
qualifications and record of service. 

In  support  of  his  request,  applicant  submits  a  Statement  of 
Facts, Counsel's Brief, and additional documents associated w i t h  
the  issues cited  in his  contentions  (Volumes I  -  111).  These 
documents are appended at Exhibit A. 

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9 6 - 1 0 0 0 4  

e 

STATEMENT OF FACTS: 

The  following  information was  extracted  from  the  documentation 
submitted by the applicant. 

On 9 June 1956, the applicant was appointed a second lieutenant, 
Reserve  of  the  Air  Force.  He  was  awarded  the  Aeronautical 
Ratings  of  Navigator  on  19 December  1957,  Senior Navigator  on 
29 July 1965 and Master Navigator on 27 December 1972.  Applicant 
completed  Squadron  Officer  School  (correspondence),  February 
1959; Air Command and Staff College  (ACSC) (in residency) , June 
1971;  and  the  National  Security  Management  Course,  Industrial 
College of the Armed Forces (correspondence), August 1973. 
The  applicant  was  progressively  promoted  to  the  grade  of 
brigadier general, Reserve of  the Air Force, with the effective 
date and date of rank of 12 March 1986. 
In  November  1980,  while  serving  in  the  qrade  of  Colonel. 

1, the applic 

the duty of  Im- to the 

From  1  April  1989  until  his  retirement,  the 

f 

The applicant was considered and nonselected for promotion to the 
Reserve grade of major general by the CY90 Reserve Major General 
Selection Board, which convened on 26 October 1989. 
As of 30 June 1990, applicant had accrued a total of 33 years of 
satisfactory Federal service.  He was credited with  9 years, 11 
montbs and 9 days of active duty service. 
On  28  February  1991,  the  applicant  was  relieved  from  his 
assignment  with 
nd  assigned  to  the  Retired  Reserve 
Section  Awaiting -placed 
on  the  Reserve  Retired  List, 
effective  12 March  1991. 
Applicant's  Point  Credit  Summary, 
prepared  10 August  1991, reveals that as of  the Retirement Year 
Ending  (RYE)  8  June  1991,  he  was  credited  with  34  years  of 
satisfactory Federal service. 
On  27  April  1992,  under  the  Freedom  of  Information Act,  the 
applicant  requested  documents, to  include  his  Reserve  General 
Officer  Selection  Folder,  pertaining  to  the  26  October  1989 
Reserve  Major  General  Selection  Board. 
The  applicant  was 
notified on 29 March 1993 that a portion of the Selection Folder 
was  exempt  from disclosure.  HQ USAF/RE  informed the  applicant 
that "All Air Force Forms 71, 77, and 78 closed out on or before 
31 January 1991 are not available for review.  They were rendered 
under an expressed promise of confidentiality and are exempt from 

3 

96- 10004 

release under  the  Freedom of  Information Act, according to Air 
Force Regulation 36-9.  Disclosure of these forms would result in 
a  clearly  unwarranted  invasion  of  personal  privacy. 
The 
authority for this exemption is in the United States- Code, Title 
5, Section 552 (b) (6) .I' 

AIR FORCE EVALUATION: 

The Director of Personnel, HQ USAF/REP, reviewed this application 
and recommended denial.  REP provided a detailed analysis of the 
case.  REP concluded that the applicant's allegations concerning 
his  nonselection  to major  general by  the  1989  Reserve  General 
Officer  Selection  Board  have  not  been  substantiated  and  the 
applicant has  failed to demonstrate that an error or in-iustice 
occurred.  A  complete  copy  of  this  evaluation  is  appeided  at 
Exhibit C. 

~- 

The Air  Force  General Officer Matters  Office, AFGOMO, reviewed 
this  application  and  recommended  denial. 
AFGOMO  provided  a 
detailed summary addressing the applicant's numerous allegations 
focusing on his nonselection for major general by the 1989 USAFR 
General  Officer  Selection  Board. 
AFGOMO  concluded  that  the 
applicant's allegations were not substantiated as a violation of 
policy, directive or  statute and  therefore do  not  support  the 
relief requested.  A complete copy of this evaluation is appended 
at Exhibit D. 

The Chief of the General Law Division, HQ USAF/JAG, reviewed this 
application and recommended denial.  JAG provided a legal review 
of  the  case.  JAG  concluded  that  the  applicant's  allegations 
concerning his nonselection to major general by the 1989 Reserve 
General Officer Selection Board have not been substantiated and 
the  applicant  has  failed  to  demonstrate  that  an  error  or 
injustice  occurred. 
A  complete  copy  of  this  evaluation  is 
appended at Exhibit E. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Counsel  reviewed  the  advisory  opinions  and  indicated  that  by 
reason of  the  three advisory opinions having  failed to address 
whether applicant has demonstrated and proven the existence of an 
"injustice"  within  the  fullest  meaning  of  10  U . S . C .   ,  Section 
1552, it  is urged  that  the Board  reject the  adverse  comments, 
opinions and recommendations contained in the advisory opinions; 
and, that the Board grant the relief requested.  Counsel stated 
that  none  of  the advisory opinions addressed or reconciled the 
injustice of  applicant's  failure of  selection  for promotion  by 
the  Reserve General Officer  Selection Board, which  convened  on 
26 October 1989, and the other matters from which applicant seeks 
relief.  Had  the  advisory  opinions  undertaken  to  address  the 

4 

96-10004 

question of whether the matters and evidence applicant presented 
as  grounds  for  relief  constitute  an  "injustice"  within  the 
meaning  of  10  U.S.C.  Section  1552,  it  is  self-evident  and 
indisputable that all three advisory opinions would -have 'in  all 
reason" acknowledged that applicant's  failure to selection by the 
1989 selection board and the other matters from which applicant 
seeks relief do represent an  "injustice" warranting approval of 
the relief requested. 

Notwithstanding  the  merit  of  applicant's  request  that  his 
application not be referred to AF/RE and AF/JAG, his request was 
not  honored  and,  thereupon,  the  three  advisory  opinions  were 
rendered  in which  the authors and/or signators of  the opinions 
have  recommended  denial  of  relief.  Applicant  objects  to  the 
three advisory opinions in that  they were  rendered by  officers 
who were junior to applicant and whose signators were active duty 
Regular  Air  Force  officers  and  a  retired  Regular  Air  Force 
officer. 
Above  and  beyond  their  ranks,  active  duty  and/or 
Regular  Air  Force  status,  as  such  had  a  bearing  on  their 
objectivity in their assessment of the occurrences giving rise to 
the error and injustice of applicant's  failure of selection, and 
above and beyond  their  total and patent  lack of understanding, 
appreciation and sensitivity to the  "abiding moral  sanction  [of 
the  Board  and  Secretary  under  10  U.S.C.  Section  15521  to 
determine,  insofar as possible,  the  true  nature  of  an  alleged 
[error and/or]  injustice and to take steps to grant thorough and 
fitting relief."  Based on the cited procedural considerations, 
and  independent  of  the  substantive  considerations  cited  as 
evidence of the error and lack of merit of the adverse advisory 
opinions, it is urged that the Board reject the advisory opinions 
and  not  utilize  the  advisories as  a  basis  for  the  denial  of 
relief. 
Counsel stated that AFGOMO completely failed to acknowledge that 
an officer must be  considered on a  "fair and  equitable basis." 
Instead, AFGOMO seeks to circumvent and obfuscate the  "fair and 
equitable"  doctrine  by  asserting  that  \'because  there  were 
'problems'  with  the  active  duty  selection process,  those  same 
problems  applied  to  the  reserve  process"  and  that  the  \\two 
processes  were  governed  by  separate  sections  of  the  law  and 
different  regulations. 
The  lack  of  merit  of  AFGOMO's 
protestations is depicted and proven by  the Court's  recognition 
in Roane v. United States, that a similar certification"  [could 
not]  be  accomplished"  because  of  the  manner  in  which  the 
selection  boards  in  Roane  had  functioned  (officers  being 
considered by panels vice the entire selection board). 

Counsel stated that AFGOMO  (as well as REP and OTJAG) failed to 
address or reconcile the following matters, which were  cited in 
applicant's brief: 
(1)  On  13  July 1995,  the DOD/IG specifically stated:  "The Air 
Force  [IG] elicited testimony that indicated a PRIORITY LIST WAS 
CIRCULATED AT THE OCTOBER 1989 SELECTION BOARD." 

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9 6 - 1 0 0 0 4  

b 

for  the  1 9 8 9   selection  board 
(2) 
ackn 
preDared 
that  it was his recollection that they still used  a 
priority list for the 1 9 8 9   selection board; and that the priority 
list  was  PROVIDE 
D  to  the  r i g 8 9   se lectionl  board,  which  was 
consistent with  t he  way  rtheyl  ran all  o f  the  aeneral officer 
boards. 

I , ;  

tated their 'PRIORITY  LIST WAS PRE TTY IMPORTANT for 

( 3 )  
the 
(4) F t a t e d  that  "there were  no  outside  influences on 
[the 1 9  
selection board" - OTH ER THAN WHA T H A D B  EEN GOING ON AT 
THE TIME WITH THE PRIORITY LIST AND  THINGS LIKE THAT." 

PROMOTION TO MG"  (AX77). 
Counsel stated that  in pursuit of  its effort  to circumvent the 
fact  that  AX79  was  the  priority  list  for  the  1 9 8 9   selection 
board,  AFGOMO  seeks  to  have  this  evidence  ignored  or 
"brushed ... aside"  by  professing  that  applicant  provided  \\no 
evidence  that  these  numbers  repr 
anyone's  priority 
numbersN.  In the USAF/IG testimony of 
he identified the 
priority list submitted by applicant 
the priority  list 
that  was  PROVIDED  to  the  11989  selection1  board,  which  was 
consistent with  t he  way  rtheyl  r an ALL  of  t he  aeneral officer 
boards. 

It 

In  seeking  to  condone  the  use  of  the  priority  list  for 
consideration  by  promotion  boards,  AFGOMO  failed  to  cite  any 
statute, regulation or  directive  that  permitted  this practice. 
Without presenting a shred of supporting evidence, AFGOMO  claims 
that the \\use of priority lists were strictly controlled in terms 
of  number of  individual permitted  to  appear on the  list, etc. 
[ (sic]"; that the priority "lists were handwritten by the senior 
officer concerned and listed, in priority order, those officers 
under  his  command  he  believed  should  be  promoted  to  the  next 
higher grade',;  and  that  the  "priority lists contained only  the 
names, with no other extraneous information.  Counsel stated that 
the  fact  that  the priority  list was  "circulated at  the October 
1 9 8 9   selection board", and the fact that AFGOMO stated that  \\use 
of  priority  lists  [and] pre-board  communications" had, indeed, 
"OCCURRED  in  September and  October  1 9 8 9 " ,   proves,  among  other 
things,  the  error  of  AFGOMO's 
self-serving,  gratuitous, 
stereotyped and  naked assertion that  there  '5s no evidence the 
[1989  selectionl  board  did  not  consider each  candidate on  the 
basis of  his professional qualifications and record of service" 
and that the \\board certified at the conclusion of the board that 
it  carefully  considered  the  case  of  each  and  every  officer". 

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9 6 - 1 0 0 0 4  

AFGOMO  did  not  address  or  reconcile  applicant's  professional 
qualifications and  record of  service because  if  it had, AFGOMO 
would  have  been  compelled  to  acknowledge  the  merit  of  the 
applicant being granted the relief requested.  Couns-el asks that 
the Board reject and not utilize the AFGOMO advisory opinion as a 
basis for the denial of relief. 

Counsel  stated  that  the  AF/REP  advisory  opinion  is  a  shorter 
version of the AFGOMO advisory opinion, with certain variations. 
AF/REP' s assertion that  applicant  "provides no  evidence...  . that 
the  members  of  the  1989  selection  board  were  improperly  and 
unduly  influenced"  defies  logic  and  is  clearly without  merit. 
REP would have the Board and Secretary believe that the members 
of  the  selection board  functioned  in  a  vacuum  and  completely 
"brushed  aside"  the  "use  of  priority  lists  and  pre-boar& 
communications that occurred  in September and October 1989,'  and 
which  is proven  by  the  fact  that  4 of  the  5  officers on  the 
priority  list were  selected.  AF/REP  ignored, disregarded and, 
again ,  "bru 
e  information  contained  in  the  IG 
statement of 
incumbent Chief of Air Force Reserve, 
that  "there 
de  influences on  [the 26 October 1989 
selection] board" - OTHER THAN WHAT HAD BEEN GOING ON AT THE TIME 
WITH THE PRIORITY LIST AND THINGS LIKE THAT." 
In  attempting  to  circumvent  the  impropriety  of 
attending the "special meeting" and serving as  a voting member of 
ites the  general's  status as  a 
as being  the  justification for 
The fact that there may 
ttendance at the  "special 
a  "senior  Mobilization 
Assistant" begs the question as to the impropriety of his having 
served as a voting member of the 26 October 1989 selection board 
after having  attended the  "special meeting"  where  the  priority 
list was  "circulated" and  after his being  exposed to the  "re- 
board  communications  which  occurred  in  September  and  October 
1989."  In  an  attempt  to  defuse  the  impropriety of 
having served as a voting member of the 1989 selection 
points out  that  active duty  officers, a lieutenant g 
two major  generals, also  served as voting members  of  the  1989 
selection board.  The fact that  there were three  "active du 
officers  on  the  1989  selection  board  is  tota 
1 and irrelevant to the matter of the impropriety of 
ving  served as  a  voting member  of  the  1989  selecti 
Similarly,  the  fact  that  each  member  of  the  1989 
selection board "served under oath" and was  "expected to perform 
his duties without prejudice or partiality", as required by law, 
neither eradicates the impropriety of the voting members having 
been  exposed  to  the  priority  list  and  the  pre-board 
communications, nor does it prove that the voting members of  the 
selection board  "brushed ... aside" the priority  list and pre-board 
communications. 

7 

-

-

 

- 

Counsel  stated  that  while  applicant  may  not  have  in  his  hix> 
f  th; 
pockets  confessions  from  one  or  more  the 
26 October  1989  selection board  admitting  that 
unduly 
influenced  the  outcome  of  the  1989  selection 
licant 
submits that  in light of  the  totality of  the  evidence  that  is 
before the Board and Secretary proving that a meetins did occur 
and that, at the very least, they 
with the three 
rity list, the  error and  lack of 
had  been  shown 
merit  of  REP'S 
self-evident  and  indisputable.  In 
this regard, the fact that the  "final decision" re&ed  with the 
1989 selection board that was composed of three active duty and 
three  Reserve  members  does  not  overcome  the. reality  that  a 
meeting did occur, that the three Reserve members were shown the 
"priority list" and that this \'impacted,, on the "independence,, of 
at  least  three  members  of  the  1989  selection  board  as  a 
consequence of which applicant was not considered on a "fair and 
equitable  basis",  was  not  considered  "without  prejudice  and 
partiality"  in  violation  of  10  U.S.C.,  Section  8362(d),  and, 
therefore,  that  applicant's  failure  of  selection  by  the  1989 
selection board  was materially and  legally  in error and unjust 
and,  accordingly, that  applicant  should  be  granted  the  relief 
requested in his application. 

Counsel's  response  to  the  advisory  opinions  is  appended  at 
Exhibit G. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

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. 
Applicant's  numerous  contentions  concerning  his  failure  to  be 
promoted  to  major  general, Reserve  of  the Air  Force, are  duly 
noted.  However, we  are  unpersuaded  by  the  evidence  presented 
that approval of the requested relief is appropriate.  Other than 
his  own  statements,  the  applicant  provides  no  corroborative 
evidence  to  suggest  that  the  members  of  the  duly  constituted 
selection board would not perform their sworn duty, L e . ,  provide 
him a full and fair consideration based on his record.  While the 
applicant's  record  may  be  outstanding,  his  nonselection  is 
indicative of the intensely competitive nature of  the promotion 
selection  process. 
Apparently,  while  fully  qualified,  t h e  
applicant was not considered the best qualified by the selection 
board  based  on future potential.  We  are not  convinced by  the 
evidence presented that the applicant did not compete fairly with 
his peers.  As to the "priority list," inasmuch as this list was 
to  be  handwritten, we  are  not  persuaded  that  the  typed  list 
submitted was  the  actual  list  reviewed.  Nevertheless, we  note 
that "priority lists" have been the process used by the Air Force 

8 

96- 10004 

for over 20 years and  that  this system was well  known by  most 
individuals having sufficient years in the service.  At  the time 
the  applicant was  considered for promotion  to major  general by 
the CY90 Air Force Reserve General Officer Selection Board, the 
use  of  "priority  lists"  were  not  prohibited  under  Air  Force 
regulations.  We therefore are of the opinion that, inasmuch as 
priority  lists were  equitably applied  throughout  the  years, it 
was  not  unjust  in  this  instance.  We  find  that  the  applicant 
received  fair  and  equitable  promotion  consideration under  the 
rules, regulations and policies established by  the Secretary of 
the Air Force at that time.  Additionally, in our opinion, having 
your  name  on  a  '81istN does  not  guarantee  a .promotion.  The 
applicant  has  provided  no  evidence  which  shows  that  he  was 
inequitably  treated  when  compared  to  other  similarly  situated 
officers.  We  note  the  applicant's  contention that  two  of  the 
officers  selected  for  promotion  should  not  have  been  deemed 
qualified.  We consider this to be a moot issue since the record 
of a promotion  nominee  goes  through  extensive  review prior  to 
Senate  approval. 
Hence,  if  the  nominee(s)  was  not  fully 
qualified  for the promotion, he would  not  have  received Senate 
confirmation. 

As to the issue of one of the conferees subsequently serving on 
the CY90 selection board, we note the Air Force Inspector General 
(IG) investigation concluded that the conferee in question acted 
without  prejudice  or  partiality  as  a  selection  board  member. 
Therefore, we  find no merit  in applicant's  contention that  his 
nonselection  was  indicative  of  the  member  in  question  being 
prejudiced by  attending both  the  conference and  serving on the 
CY90  selection board.  With  regard  to  the  allegation that  the 
results of the CY90 selection board were made known to AF/DP and 
the  Secretary  of  the  Air  Force  before  the  selection  board 
adjourned, we find no evidence to support this claim. 
In view  of  the  foregoing, we  are  unpersuaded  by  the  evidence 
presented  that  the  applicant  was  denied  fair  and  equitable 
consideration for promotion to the Reserve grade of major general 
by  the  CY90 Air  Force Reserve General  Officer  Selection Board. 
Additionally,  applicant's  contentions  concerning  the  selection 
board  being  conducted  in  violation  of  DoD  and  Congressional 
policy, in our opinion, have no merit.  We  further believe that 
the  detailed  comments  provided  by  the  respective  Air  Force 
offices adequately address the applicant's numerous contentions. 
We  therefore agree with the opinions and recommendations of  the 
Air Force and adopt the rationale expressed as the basis for our 
conclusion  that  the  applicant  failed  to  sustain his  burden  of 
establishing  the  existence of  either  an  error  or  an  injustice 
warranting favorable action on his requests. 

4.  The applicant's case is adequately documented and it has not 
been  shown that  a  personal  appearance  with  or  without  counsel 
will  materially  add  to  our  understanding  of  the  issue(s) 

9 

96- 10004 

,  i

r

 

involved. 
considered. 

Therefore, the request for a hearing is not favorably 

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  July 1998,  under the provisions  of AFI 
36-2603 : 

Mrs. Barbara A. Westgate, Panel Chair 
Mr. Henry Romo Jr., Member 
Mr. Vaughn E. Schlunz, Member 

The following documentary evidence was considered: 

Exhibit A.  Letter from counsel, dated 27 Oct 95, with 
attachments (DD Form 149, dated 28 Feb 92). 
Applicant's Master Personnel Records. 
Exhibit B. 
Exhibit C.  Letter, HQ USAF/REP, dated 5 Apr 96. 
Exhibit D.  Letter, AFGOMO, dated 8 Apr 96. 
Exhibit E.  Letter, AF/JAG, dated 5 Apr 96. 
Exhibit F.  Letter, SAF/MIBR, dated 18 Apr 96. 
Exhibit G.  Letter from counsel, dated 12 Nov 96, with 

attachments. 

/BARBARA A. WESTGATE 
Panel Chair 

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96- 10004