RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  96-01099

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His nonselections for promotion to the grade of colonel, beginning  with
the Calendar Year (CY) 1987 Colonel Board, be declared null and void.

2.  The Letter of Evaluation (LOE) closing 26 July  1987  be  added  to  his
record for consideration by the CY87 Colonel Board.

3.  The Promotion Recommendation Forms (PRFs)  received  for  the  CY89  and
later boards be upgraded to “Definitely Promote” recommendations.

4.  His record be corrected to  reflect  selection  for  promotion  (in  the
promotion zone) to the grade of colonel as if selected by the  CY87  Colonel
Board.

5.  His record be corrected to reflect  continuous  active  duty  since  his
separation, to include restoration of  all  pay,  benefits,  and  any  other
entitlements to include carryover of the maximum amount  of  leave  for  the
period he was not on active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was told by one of the chaplain board members that  he  would  have  been
selected had not the board president received a call from the  Tactical  Air
Command Commander who wanted one of his chaplains promoted  at  that  board.
At the time, he didn’t believe the president of the  selection  board  could
override the recommendation of the majority of the board members.   However,
he has now learned that  what  he  was  told  was  not  only  possible,  but
probably the only reason he was not  selected  for  promotion  by  the  CY87
Board.

His reporting official elected to complete  a  LOE  [1  April-26 July  1987]
although he would have had more than 120  days  of  supervision  before  his
departure.  As a result,  the  selection  board  did  not  have  significant
information reflecting his most recent duty information.   In  view  of  the
“missing” OER, he requests that the Board  direct  he  be  reconsidered  for
promotion with the LOE included in his record.

The management evaluation board failed to meet the requirements of  the  law
and denied him several rights to due process which were guaranteed him.   In
view of this, the results of the board(s) should be declared null  and  void
and the PRFs he received for the CY89 and later boards  should  be  ugpraded
to “Definitely Promote” recommendations.

The selection  boards  which  considered  him  for  promotion  violated  the
minimum  due  process  requirements  of  law  and  directive.    Air   Force
procedures ignored the Department of  Defense  (DOD)  directive  requirement
for separate boards.  The  operation  of  the  selection  boards  failed  to
comply with Sections 616 and 617.  In addition, the board  president’s  role
violates DOD restrictions.  As a result, these  boards  are  without  effect
and the results of the illegally held selection boards should be set aside.

In support of his request,  applicant  provided  his  17-page  statement;  a
statement from the evaluator on  the  contested  LOE;  a  talking  paper  on
OES/EES Update; and  a  document  entitled  “Evidentiary  Support:   Illegal
Selection Boards.”

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Prior to this appointment  in  the  Air  Force,  applicant  had  active  and
inactive enlisted service in the US Army and  US  Army  Reserve  during  the
period 4 January 1962 to 31 December 1967.

On 20 February 1970, applicant was appointed as first lieutenant,  Chaplain,
Reserve of the Air Force.  He was voluntarily  ordered  to  extended  active
duty on 20 April 1970.  He served on continuous active duty, was  integrated
into the Regular Component on 3 July 1974,  and  progressively  promoted  to
the grade of lieutenant colonel.

Applicant’s OER/OPR profile subsequent to his  promotion  to  the  grade  of
major follows:

      PERIOD CLOSING   OVERALL EVALUATION

         4 May 79      1-1-1
         4 May 80      1-X-1
         1 Sep 80      1-X-1
        30 Apr 81      1-X-1
        30 Apr 82      1-1-1
        30 Apr 83      1-1-X (w/LOE)
        30 Apr 84      1-1-1
        31 Mar 85      1-1-1
        31 Mar 86      1-1-1
   *    31 Mar 87      1-1-1
        31 Mar 88      1-1-1 (w/LOE 1 Apr 87-26 Jul 87)
   #    31 Mar 89      Meets Standards

* Top report in file when considered and not selected for promotion  to  the
grade of colonel by the CY87 Central Colonel Board,  which  convened  on  10
Aug 87.

# Top report in file when considered and not selected for promotion  to  the
grade of colonel by the CY89 Central Colonel Board,  which  convened  on  10
Jun 89.

On 30 November 1989, applicant was relieved from  active  duty  and  retired
effective 1 December 1989 in  the  grade  of  lieutenant  colonel.   He  was
credited with 21 years,  6  months,  and  19  days  of  active  service  for
retirement.

___________________________________________________________________

AIR FORCE EVALUATION:

The Evaluation Programs Branch, AFPC/DPPPEP, reviewed this  application  and
states that there are no provisions in AFR 36-10 which warrant rendering  an
OPR with less than 120 days of supervision unless the  report  is  referral.
Applicant indicates there was sufficient  time  to  render  an  OPR  if  the
closeout date were adjusted closer to his departure date.  However,  he  has
not attached any supporting  documentation  to  substantiate  his  departure
date.   Therefore,  they  can  not  determine  if  there  would  have   been
sufficient time to  render  an  OPR  prior  to  applicant’s  departure,  and
recommend denial of his requests.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The  Selection  Board  Secretariat,  AFPC/DPPB,  addressed  the   “Defective
Selection Boards” section of applicant’s request.  DPPB did not  agree  with
applicant’s  contention  that  his  promotion  board  was  in  violation  of
Sections 616 and 617, 10 USC.  Air Force legal representative have  reviewed
their procedures on several occasions during the past  few  years  and  have
determined those procedures comply with applicable statutes and policy.

Section 621, 10 USC, and DOD Directive 1320.12 require individual  selection
boards for each competitive category and permit the boards  to  be  convened
concurrently.  Contrary  to  applicant’s  arguments,  every  Chaplain  board
member on the boards in  question  did  review  and  score  the  applicant’s
record.

DPPB  further  stated  that  the  actions/responsibilities  of  each   board
president are in compliance with the statute and policy.  And all Air  Force
promotion boards comply with DODD 1320.12.

The complete copy of the Air Force evaluation is attached at Exhibit D.

The  BCMR  and  SSB  Section,  AFPC/DPPPA,  reviewed  this  application  and
concurred with the advisory  opinions  provided  by  AFPC/DPPB  and  DPPPEP.
DPPPA further stated that the LOE closing 26  July  1987  was  appropriately
attached to the OER closing 31 March 1988 (AFR 36-10, Table  6-1,  Rule  1F,
Chg 1).  The applicant’s period of  supervision  was  117  days,  which  was
properly documented on an LOE.  The contested LOE was not required to be  in
the applicant’s officer selection record (OSR) for the  CY87  board.   While
the applicant believes an OER should have been accomplished on him,  closing
out at the 120-day point of supervision  (29  July  1987),  he  provides  no
evidence to support this claim.  Neither the LOE, nor any OER the  applicant
claims should have been written, was required to be in the  applicant’s  OSR
for the 10 August 1987 board.  Therefore, they recommend the application  be
denied.

A complete copy of the Air Force evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant stated his petition was filed in a  timely  manner  after  he  was
able to obtain information on the illegal operation of  Air  Force  chaplain
boards.  He noted that AFPC did not dispute the fact that the  role  of  the
board president could not be known as the Secretary of  the  Air  Force  did
not “prescribe” it although required to do so by DOD directive.

He  reiterated  his  contention  that  his  reporting  official  elected  to
complete an LOE although he would have had more than  120  days  before  his
departure.  As a result, he was missing an OER when he was first  considered
for promotion to colonel.

Applicant restated his  contentions  that  the  Air  Force  selection  board
process was operated totally outside  the  law  when  the  boards  met  that
considered his file for promotion.  As in the  Roane  case,  the  Air  Force
selection boards which considered his  file  did  not  allow  board  members
either the knowledge of the officers recommended to make this  decision  nor
did they allow a majority of the members of the board to form  the  required
consensus; Air Force selection boards give  final  recommendation  authority
to the board president - not the majority of the members  of  the  board  as
required by law and directive; and the required  separate  boards  were  not
held and the required separate board reports were not issued.  Any of  these
violations of law and directive would singularly dictate set  aside  of  the
liability he incurred as a result of these  illegal  boards.   Collectively,
these violations mandate such action by the Board to provide him  “full  and
fitting relief.”

He stated that the Board should correct his record to reflect  promotion  to
colonel because a Special Selection Board (SSB)  cannot  fairly  assess  his
record for promotion because:  (1) the  “benchmark”  records  used  in  this
process are tainted by the errors  from  the  original  board  and  (2)  the
scoring system used by the SSBs is arbitrary and capricious.

Applicant’s complete response, with attachments, is at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The  Evaluation  Procedures  Section,  AFPC/DPPPEP,  addressed   applicant’s
request that his records be reevaluated using the LOE closing 26  July  1987
as a stand-alone report.  Noting applicant’s  allegations  that  the  letter
provided by his former rater was ignored, DPPPEP stated  the  letter  merely
fails to support the contention that an OER should have been  written.   The
rater did not state he was unaware an OER could have been written, nor  does
he state the applicant did have the required supervision at the time of  his
(the applicant’s) departure.  In fact, the  rater  states  he  felt  if  the
applicant left “for his next assignment prior  to  the  120-day  time  limit
since his last OER,  another  OER  would  not  have  to  be  written.”   The
“supporting documentation”  provided  by  the  rater  is  without  merit  in
regards to substantiating the applicant’s claim.

DPPPEP noted the PCS orders and amendment provided by applicant as proof  he
had 120 days of supervision prior to departure.  The PCS  order  reflects  a
Report Not Later Than Date  (RNLTD)  of  30 September  1987;  the  amendment
changes his RNLTD to 30 August 1987.  A RNLTD is just that -  a  report  not
later than date.   With  his  commander’s  approval,  applicant  could  have
reported to his new duty station as early as  2  July  1987.   Further,  the
selection brief shows the applicant’s first duty title on record at his  new
station was effective 5 August 1987.  His contention  that  his  orders  and
selection brief prove he had at least  120  days  of  supervision  prior  to
departure is without merit.

In conclusion, the applicant has not proven in any way that he did have  120
days of supervision prior to  his  departure.   There  are  other  documents
which  would  reflect  actual  departure  date,  any  leave  taken   between
outprocessing and departure, etc.,  but  applicant  has  failed  to  produce
them.

A complete copy of the Air Force evaluation is at Exhibit H.

The Staff Judge Advocate, AFPC/JA,  reviewed  this  application  and  opined
that the application should be denied as untimely.  Applicant has failed  to
file within the allotted time period and has  not  satisfactorily  explained
the failure.  Moreover, it would not  be  in  the  interest  of  justice  to
excuse the failure.  In JA’s opinion, the  applicant,  on  the  merits,  has
failed to present relevant evidence of any  error  or  injustice  warranting
relief.  Their comments, in part, follow.

With respect to the issue involving the alleged  defective  record  and  the
1987 LOE, JA deferred  to,  and  agreed  with  the  advisories  provided  by
AFPC/DPPB, DPPPA and DPPPEP.  Regarding  applicant’s  assertions  that  AFPC
failed to address Doyle v. US, JA noted that  the  crucial  prerequisite  to
application   of   the   principle   quoted   from   Doyle   is   that   the
applicant/plaintiff must first prove an error.  It  is  only  then  that  an
analysis of impact and prejudice even become relevant.  In this regard,  the
applicant seemingly fails to understand that the burden of proof rests  with
the applicant, and that,  once  again,  the  government’s  burden  to  prove
“harmless error” comes into play only if an error  has  first  been  proven.
In JA’s opinion, the applicant  has  failed  in  his  burden  to  prove  the
existence of any error requiring the need for a potential remedy.

Applicant’s argument  that  Nonline  Evaluation  Boards  (NLEB)  are  flawed
because they fail to incorporate the safeguards required for Section  611(a)
boards is totally without merit.  Indeed,  promotion  selection  boards  are
controlled by Title 10.  On the other hand,  NLEB’s  are  part  of  the  Air
Force’s internal evaluation system, one of the key purposes of which is  “to
provide selection boards with sound information to assist them in  selecting
the best qualified officers.”  It is not part  of  the  promotion  selection
process itself.  As a consequence,  Title  10  requirements  do  not  -  and
should not - apply to NLEB’s or any other aspects of the officer  evaluation
system (OES).  To require otherwise would suggest that the  OES  is  not  an
evaluation process, as it is, but merely a part of the promotion process.

Applicant argues that promotion board panels operate  independently  of  one
another, thereby rendering as impossible the promotion recommendation by  “a
majority of the members of  the  board”  mandated  by  10  USC  616  or  the
resulting certification required by 10 USC 617.  JA  stated  that,  for  the
record, each of the chaplain panels that applicant met, both  in  and  above
the promotion zone, was a separate  promotion  board  (“panel”  nomenclature
notwithstanding), the results of  which  were  merely  consolidated  into  a
single board report that announced the results of the line  panels  and  the
other  competitive  categories  (such  consolidation  is  permitted  by  DOD
Directive 1320.12, para E2h).  Consequently,  all  of  the  members  of  the
chaplain board saw all of the chaplain records, and  all  of  those  members
voted on and certified the resultant selections.  Indeed,  only  members  of
the chaplain board/panel certified to  the  chaplain  selections  (and  only
members of other non-line competitive category board  members  certified  to
the results of their respective promotion category members),  while  members
of the line panels certified only the line  selections.   All  prerequisites
of the law were easily met for this applicant.

The applicant has offered absolutely no evidence that the president  of  his
promotion board or the president of any  other  Air  Force  promotion  board
ever acted contrary to law, DOD Directive, or  Air  Force  regulation.   The
duties prescribed for the president of  an  Air  Force  board  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.  The president and  all  members  of  promotion  boards  are
entitled to the presumption that they have  acted  in  accordance  with  the
law, the directives, and the instructions of the Secretary  in  the  absence
of evidence to the contrary.  Applicant has offered no such evidence.

Noting 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 the DOD  Directive.   In  JA’s
opinion, this argument is without merit.  It is clear that  the  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 Section 621 requirements).  In truth,  nomenclature
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.
  As noted above, however, the nonline  competitive  panels  are  panels  in
name only; in fact, they are separate promotion boards for purposes  of  the
statutes  and  the  DOD  Directive.   Consequently,  they  fulfill  all  the
requisite statutory and regulatory requirements.

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.   The
applicant has failed to present any evidence whatsoever that the  systematic
errors he alleges were responsible for his promotion nonselection.

Noting applicant’s claims  that  his  nonselection  cannot  be  remedied  by
special selection board consideration, JA  reiterated  their  strong  belief
that applicant has not provided a  meritorious  application  warranting  the
need for any relief.  They  stated  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
has failed to do so.

The complete copy of the Air Force evaluation is attached at Exhibit I.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant stated that the  evidence  -  in  the  form  of  Air  Force’s  own
documents - is unequivocal:  the procedures  used  by  Air  Force  selection
boards were (and still are) unknowable, and the statute  of  limitations  is
thusly tolled.  Therefore, he requests that the Board  review  his  case  on
merits.

Applicant restated his contentions that the selection  board  process  which
considered him for promotion was contrary to law  and  regulation.   In  his
summary, he stated the unrefuted  evidence  proves  he  was  harmed  by  the
missing OER from the Air University and that he  was  harmed  by  a  central
selection board process held contrary to law.  The evidence  proves  an  SSB
offers no cure because the combination of errors precludes relief.

Applicant’s complete response, with attachments, is attached at Exhibit K.


THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.    The application was not timely filed; however, it is in  the  interest
of justice to excuse the failure to timely file.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.  After  thoroughly  reviewing  the
evidence of record and  noting  the  applicant’s  contentions,  we  are  not
persuaded that he has been the victim of an error  or  injustice.   In  this
respect, we note the following:

      a.    Applicant contends an OPR should  have  been  rendered  for  the
period 1 April 1986 through 26 July 1987 since he had more than 120 days  of
supervision and, since one was not prepared, he should be  reconsidered  for
promotion with an LOE, prepared  for  the  contested  period,  a  matter  of
record.  However, since the actual period of supervision was  117  days,  an
OER was not required and his performance during  this  period  was  properly
documented on an LOE, which was attached to the OER, closing 31 March  1988.
 The statement from the rater has been noted; however, it does not  indicate
that he was unaware an OER could have been written.  More  importantly,  the
rater does not state that applicant had the required supervision to  require
an OER be rendered.  To the contrary,  the  rater  states  he  felt  if  the
applicant left “for his next assignment prior  to  the  120-day  time  limit
since his last OER, another OER would not have to be written.”

       b.     Applicant's  numerous  contentions  concerning  the  statutory
compliance  of  central  selection  boards,  the  promotion   recommendation
process, and the legality of the SSB process are duly  noted.   However,  we
do  not  find  these  uncorroborated  assertions,  in  and  by   themselves,
sufficiently persuasive to  override  the  rationale  provided  by  the  Air
Force.  Therefore, we agree with the recommendation of  the  Air  Force  and
adopt the rational 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  these
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) 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 not considered with this application.


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

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

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 17 Apr 96, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPPAB, dated 28 May 96.
      Exhibit D.  Letter, AFPC/DPPB, dated 7 Jun 96.
      Exhibit E.  Letter, AFPC/DPPPA, dated 12 Jun 96.
      Exhibit F.  Letter, AFBCMR, dated 18 Sep 96.
      Exhibit G.  Letter, Applicant, dated 3 Sep 96, w/atchs.
      Exhibit H.  Letter, AFPC/DPPPEP, dated 18 Oct 96.
      Exhibit I.  Letter, AFPC/JA, dated 8 Jan 97, w/atch.
      Exhibit J.  Letter, SAF/MIBR, dated 20 Jan 97.
      Exhibit K.  Letter, Applicant, dated 3 Jul 97, w/atchs.




             THOMAS S. MARKIEWICZ
                                  Panel Chair