ADDENDUM TO
                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  88-00782
            INDEX NUMBER:  131.10
            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His nonselections for promotion to the grade of major  be  set  aside;
and, that he be reinstated on active duty, with his  record  corrected
to reflect continuous active duty (with all pay, rights, benefits, and
other entitlements) until he can be  considered  by  selection  boards
conducted squarely  according  to  the  requirements  of  statute  and
directive.

___________________________________________________________________

RESUME OF CASE:

Pursuant to an application submitted by the applicant under  AFR  31-3
on 14 April 1987, which resulted in the OERs closing 28 July 1983  and
18 July 1985 being voided and removed from  his  records,  the  AFBCMR
recommended that the applicant’s nonselections for  promotion  by  the
CY86A and CY86B central major selection boards be set aside  and  that
his corrected  records  be  placed  before  special  selection  boards
(SSBs).   A  memorandum  directing  implementation  of   the   Board’s
recommendation  was  issued  on  17  July  1987.   The  applicant  was
considered and not selected for promotion to the grade of major by  an
SSB convened on 28 September 1987 for the CY86A board and  by  an  SSB
convened on 30 November 1987 for the CY86B board.

In February 1988, applicant submitted applications requesting that his
nonselections for promotion to the grade of  major  by  SSBs  for  the
CY86A and CY86B boards, and by the CY87 central selection board be set
aside; and, he be afforded additional considerations for promotion  by
the subject boards.  On 27 April 1988, the AFBCMR favorably considered
his request with respect to the CY86A selection board and  recommended
that the nonselection by the CY86A board be set  aside  and  that  the
applicant be considered for promotion by SSB for the  CY86A  selection
board.  The board recommended denial of his requests pertaining to the
CY87 central selection  board  and  the  CY86B  SSB.   However,  on  2
December 1988, the Assistant Secretary of the Air Force, Manpower  and
Reserve Affairs, elected not to accept the board’s recommendation  and
the applications were denied in their entirety (Exhibits A through E).

In January 1989, through counsel, applicant requested  reconsideration
of his appeal (Exhibit F).  On 2 February 1989, he  was  advised  that
his request did not meet  the  criteria  for  reconsideration  of  his
application (Exhibit G).

By letter, dated 7 July 1997, applicant requested  reconsideration  of
the Board’s decision and provided additional documentation in the form
of a 5 May 1977 letter, subject:  Basis of  Board  Selections,  and  a
document entitled “Evidentiary Support:   Illegal  Selection  Boards.”
(Exhibit H)

___________________________________________________________________

APPLICANT CONTENDS THAT:

The Special Selections Boards  (SSBs)  and  central  selection  boards
which considered his file  were  conducted  contrary  to  statute  and
directive.

Not only was the SSB held in direct violation of statute, the  process
itself was so arbitrary and capricious that it  could  not  accurately
assess if he would or would not have been  selected  by  the  original
board.  The SSB did not have  the  required  quorum  and  the  scoring
system was arbitrary and capricious.

The Air Force selection board procedures  used  by  the  boards  which
considered his file violated the minimum due process  requirements  of
law and directives.  At the boards  which  considered  his  file,  the
Secretary had never prescribed duties for the board president - an act
of omission; and the  Secretary  actually  misinformed  the  selection
board about known deficiencies in the controlled OERs -  an  error  of
commission.  Not only were separate boards not  held,  separate  board
reports were not issued.

Applicant’s  complete  22-page  statement,  with  attachments,  is  at
Exhibit H.
___________________________________________________________________

STATEMENT OF FACTS:

The pertinent facts pertaining to the applicant’s military service are
contained in the Statement of Facts section in the original Record  of
Proceedings.

As  a  result  of  applicant’s  nonselections  for  promotion  by  the
contested SSBs and the CY87 central  major  selection  board,  he  was
released from active duty on 31 July 1988 and was transferred  to  the
Air Force Reserve.  On 1 August 1988, he enlisted in the  Regular  Air
Force in the grade of staff sergeant (E-5) for a period of two  years.
On 30 September 1991, he was released from  active  duty  and  retired
effective 1 October 1991 in the grade of  captain.   He  was  credited
with 20 years, 9 months, and 24 days of active service for retirement.
___________________________________________________________________

AIR FORCE EVALUATION:

The Chief  of  Operations,  Selection  Board  Secretariat,  AFPC/DPPB,
reviewed this request and disagreed with applicant’s  assertions  that
the SSB process used by the Air Force is “tainted,”  does  not  comply
with applicable statutes, and has an arbitrary and capricious  scoring
system.   The  SSB  process  is  in  compliance  with  all   governing
directives.

Each SSB has a minimum of five officers  from  the  Active  Duty  List
(ADL),  has  Reserve  representation  when  required,  and  has  corps
representation.  Applicant’s statement that the voting members must be
on  the  ADL  is  incorrect.    The   law   does   not   address   the
voting/nonvoting status of board members.

Since the applicant was a Medical Service Corps  (MSC)  officer,  only
one panel scored the entire competitive  category,  formed  one  I/APZ
order of merit and one BPZ order  of  merit,  and  completed  the  BPZ
displacement process.

Contrary to applicant’s assertions, DPPB indicated that the Air  Force
promotion board procedures comply with applicable statutes and policy.
  The  actions/responsibilities  of  each  board  president   are   in
compliance with governing directives.  All Air Force promotion  boards
are in compliance with DODD 1320.09, in that each competitive category
competed  only  within  itself;  i.e.,  the  chaplain  eligibles  only
competed  against  other  chaplain  eligibles,  and  the  nurse  corps
eligibles only competed against other nurse  corps  eligibles.   Never
would two different competitive categories compete against each other.

Noting applicant’s claim that promotion boards were  misled  regarding
the controlled OERs, DPPB stated that the formal charge - Secretary of
the Air Force guidance to selection  board  members  -  addressed  the
context in which board members were to evaluate OERs  prepared  during
the controlled OER system vis-a-vis the whole person concept  (extract
attached).

The complete evaluation is at Exhibit I.

The Chief, Appeals and SSB  Branch,  AFPC/DPPPA,  concurred  with  the
advisory opinion provided by AFPC/DPPB.  (Exhibit J)

The Staff Judge  Advocate,  AFPC/JA,  reviewed  this  application  and
provided their assessment of the applicant’s arguments.  JA stated, in
part, that the SSBs did comply with the membership requirements of  10
USC 612; and the Air Force’s SSB procedures  fully  comport  with  the
statute and the applicant has failed to prove otherwise.   As  to  the
board president’s duties, JA stated  that  the  administrative  duties
prescribed for (and followed by) promotion  board  presidents  in  the
1986-87 time frame were exactly the same as those used after AFR 36-89
was reissued in 1992, and they  remain  the  same  today.   This  fact
further supports that presumption of regularity  and  conformity  with
respect to board presidents following the  duties  prescribed  by  the
Secretary.  The applicant has offered no proof that the  president  of
his or any Air Force selection board has ever acted contrary to law or
regulation.

The applicant has not  proven  that  promotion  boards  were  provided
misrepresentations  concerning  controlled  era  OERs.   First,  there
existed no “illegality” to correct in the  instructions  to  promotion
boards.  Rather, the Air Force realized that  the  problems  with  the
system that ultimately led to its rejection did warrant explanation to
board members to permit the controlled era reports to be placed in the
proper perspective.  In  JA’s  opinion,  the  portion  of  the  charge
criticized by  the  applicant  more  than  adequately  addressed  that
concern.  It clearly put the board members on notice  that  controlled
era reports deserved special attention.

The Air Force promotion boards fulfill  the  requisite  statutory  and
regulatory requirements.   JA  also  disagreed  with  the  applicant’s
contention that he would have to be reinstated to active duty in order
to be considered by  an  SSB.   In  their  opinion,  an  officer  like
applicant, who has been separated or  retired,  can  be  afforded  SSB
consideration without placing the officer  back  on  the  active  duty
list.  Such authority is clearly provided the  Secretary  of  the  Air
Force under 10 USC 628.

In JA’s opinion, the applicant’s request for reconsideration should be
denied;  he  has  failed  to   meet   the   requisite   criteria   for
reconsideration; his request is not timely; and, on the merits, he has
failed  to  present  relevant  evidence  of  any  error  or  injustice
warranting relief.

The complete evaluation is at Exhibit K.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided his expanded comments regarding the  timeliness  of
his  request  for  reconsideration.    He   further   reiterated   his
contentions  that  his  central  selection  board  and  SSBs  were  in
violation of statute, directive, and regulation.

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

___________________________________________________________________

THE BOARD CONCLUDES THAT:

Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.   The  applicant’s  numerous
assertions concerning the legality  of  the  Special  Selection  Board
(SSB) process, the statutory compliance of central  selection  boards,
the legality of the promotion recommendation process, and the  alleged
misrepresentations concerning controlled era  OERs,  are  duly  noted.
However, we do not  find  these  assertions,  in  and  of  themselves,
sufficiently persuasive to override the rationale provided by the  Air
Force (AFPC/JA).  Therefore, we agree with the recommendation from the
Air Force (AFPC/JA) and adopt the rationale expressed as the basis for
our conclusion that the applicant has failed to sustain his burden  of
establishing  the  existence  of  either  an  error  or  an  injustice
warranting favorable action on his requests.

___________________________________________________________________

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 22 June 1999, under the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Mr. Timothy A. Beyland, Member
      Mr. Joseph G. Diamond, Member

The following additional documentary evidence was considered:

    Exhibit F.  Letter from Applicant, undated, w/atch.
    Exhibit G.  Letter, AFBCMR, dated 2 Feb 89.
    Exhibit H.  Letter from Applicant, dated 7 Jul 97, w/atchs.
    Exhibit I.  Letter, AFPC/DPPB, dated 13 Nov 97, w/atch.
    Exhibit J.  Letter, AFPC/DPPPA, dated 17 Nov 97.
    Exhibit K.  Letter, AFPC/JA, dated 15 Jan 98.
    Exhibit L.  Letter, SAF/MIBR, dated 9 Feb 98.
    Exhibit M.  Letter from Applicant, undated (received 1 Feb 99),
                w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair