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


IN THE MATTER OF:      DOCKET NUMBER: 92-00585

            COUNSEL:  None

            HEARING DESIRED:  Yes



RESUME OF CASE:

On  17  February  1993,  the  Board  considered  applicant’s   request   for
retroactive promotion to the Reserve grade of  major  general,  voidance  of
his retirement, and the retention/retirement  year  ending  (RYE)  15  March
1992 be considered a satisfactory year of Federal service.   The  Board  was
not persuaded that the  applicant  had  been  the  victim  of  an  error  or
injustice and  denied  his  request.  A  complete  copy  of  the  Record  of
Proceedings is attached at Exhibit M.

Based on additional evidence submitted by applicant, on 17 April  1997,  the
Board reconsidered his request for  retroactive  promotion  to  the  Reserve
grade  of   major   general,   voidance   of   his   retirement,   and   the
retention/retirement year  ending  (RYE)  15  March  1992  be  considered  a
satisfactory year of Federal service.  The Board found  sufficient  evidence
to warrant the applicant’s consideration for promotion to the Reserve  grade
of Major General by a Special Review Board (SRB). The Board also  determined
that since the remainder of his requests were predicated on the  results  of
the SRB, further action was not appropriate at the time.   A  complete  copy
of the Addendum to Record of Proceedings is attached at Exhibit QQQ.

On 2 October 1998, the applicant was  considered  and  not  recommended  for
promotion to the Reserve grade of major general by an SRB for the  CY90  Air
Force Reserve General Officer Selection Board (Exhibit RRR).

The applicant reviewed the results  of  the  SRB  and  states  that  it  was
disingenuous for AFGOMO to have enlisted the services  of  five  senior  Air
Force generals to accomplish the SRB, without informing them  of  the  facts
surrounding the underlying  travesty  and  injustice  that  was  perpetrated
during the CY90 selection process and to have prevented them  from  engaging
in a meaningful  review  thereof  on  behalf  of  the  Secretary.   In  this
respect, he states the following:

      a.    He was denied fair and equitable consideration by the SRB  since
AFGOMO did not appoint any Judge Advocate (JA) members to  the  SRB.   Since
he  is  a  JA  and  entitled  to  consideration  for  selection  in  the  JA
competitive category, it  was  a  fundamental  denial  of  due  process  and
prejudicial  error  to  not  have  his  special  skills  and  qualifications
evaluated by a JA general officer member of the SRB.

      b.    The recommendation of the  SRB  is  invalid  since  it  was  not
sanctioned under statute or Air Force  Regulation.   His  case  it  not  the
typical case where a candidate’s record is in error,  is  corrected  by  the
Board, and then returned for reconsideration to a  Special  Selection  Board
(SSB).  In such a case, it is required by ROPMA that the  case  be  referred
to an SSB.  In his case, his promotion record was not in error  and  he  has
shown overwhelmingly that it was the CY90 Selection Board  itself  that  was
corrupted by the use of “priority lists”  and  other  unlawful  means  which
precluded fair and equitable promotion consideration.

      c.    AFGOMO is biased towards him and have been involved  in  a  long
standing effort to deny him relief.

      d.    AFGOMO precluded him from submitting relevant  information  (his
award of the Distinguished Service Medal (DSM)) to the SRB President.

      e.    AFGOMO withheld highly relevant information  in  its  possession
from the SRB.

      f.    AFGOMO erroneously instructed the SRB to  determine  whether  he
was “Fully Qualified” for promotion.  This determination  was  already  made
by the CY90 board.

      g.    AFGOMO failed to provide instructions to the SRB that the  quota
for the CY90 board was seven major generals.

      h.    AFGOMO failed to provide instructions to the SRB that he  was  a
JA and could not be compared to line officers,  as  line  officers  did  not
have requisite JA qualifications for service in the  Reserve  major  general
officer position of Mobilization Assistant to  the  Judge  Advocate  General
(AF/JAG).

The applicant’s complete response, with attachments, is attached at  Exhibit
TTT.

In view of applicant’s comments concerning the propriety  of  his  promotion
consideration by the  SRB,  on  18  March  1999,  an  advisory  opinion  was
requested.


AIR FORCE EVALUATION:

The Chief, General Law  Division,  AF/JAG,  reviewed  this  application  and
states the following:

      a.    The applicant’s argument that the  SRB  was  not  sanctioned  is
based on the premise the Secretary has no authority to do that which is  not
expressly authorized by statute.   However,  they  have  routinely  rejected
such a position as patently incorrect.  They believe the Secretary  has  the
authority to provide appropriate relief under  the  general  powers  of  the
Secretary to provide for the administration of the Air Force and to  oversee
the promotion process.

      b.    They do not read the “General Procedures” document  as  narrowly
as the applicant, since there is no  indication  that  it  was  intended  to
restrict the Board’s use of SRBs to a narrow set of circumstances.  Even  if
the “General Procedures” were to be read as restrictively as  the  applicant
suggests, he has not shown that his selection status was  one  of  selected.
While he maintains the conduct of the CY90 board, or  the  Air  Force  after
the board, resulted in an injustice, the basis for this  allegation  is  not
completely clear.  He complains of the use of “priority lists” at  the  CY90
board, but, the document in the file that appears to be such a  list,  shows
him as a presumptive selectee.  He maintains the CY90 Board did select  him,
but someone removed  his  name  from  the  list  of  selectees  later,  thus
establishing the injustice.  However, there is  no  evidence  this  actually
occurred.

      c.    The applicant’s claims that the SRB could not provide  him  fair
consideration are bald assertions unsupported by any evidence.

      d.    They agree with AFGOMO’s decision to not  disclose  to  him  and
the SRB several documents related to the  CY90  board.   They  reviewed  the
documents and believe they were properly withheld.   The  fact  that  AFGOMO
does not agree with the applicant does not prove some  impermissible  “bias”
that would justify finding an injustice.

      e.    They find no  fault  in  AFGOMO’s  decision  not  to  allow  the
applicant to inform the SRB that he had been awarded the DSM, since  at  the
time of the CY90 Board convened, he  had  not  yet  been  awarded  the  DSM.
While there may not have been any regulation  in  place  expressly  limiting
the applicant’s right to submit a letter to the SRB, AFGOMO’s  position  was
consistent  with  current  instructions  governing  letters  to  SSBs  which
require that  an  officer’s  letter  to  an  SSB  only  contain  information
available to the original board.

      f.    It has not been established there was  anything  unlawful  about
the use of priority lists at the time of the  CY90  board.   Both  they  and
AFGOMO have previously opined that such lists were  permissible  then,  even
if their use has been discontinued  in  more  recent  board.   A  change  in
policy does not convert a result obtained under the  prior  policy  into  an
injustice.  In  addition,  it  has  not  been  established  that  the  first
selectee the  applicant  complains  of  failed  to  meet  the  criteria  for
promotion consideration.  The IG testimony submitted by  applicant  suggests
the answer to that question is unclear.  More important, even if  these  two
matters had been established, they would have no relevance to the SRB.   The
SRB’s task was to recommend whether the applicant  should  now  be  selected
for promotion, when his record is compared to the selectees,  not  ascertain
why he was not promoted the first  time  or  determine  whether  to  somehow
unselect any of the five selectees.

      g.    Applicant’s contention that AFGOMO  erroneously  instructed  the
SRB to determine whether he was “fully qualified” is irrelevant since  there
is no evidence the SRB found the applicant other than “fully qualified.”

      h.    Applicant’s contention that AFGOMO failed to  instruct  the  SRB
that the promotion quota for the original  board  was  seven  is  irrelevant
since the SRB was not required to determined  whether  the  applicant  would
have fallen sixth, seventh, or first on a short list of  seven.   Nor  would
it have made a difference if the quota had  been  only  five  and  the  CY90
board has selected exactly five.  The SRB was authorized  to  recommend  the
applicant’s promotion if it considered him  equal  to  or  better  than  the
least qualified of the five selectee, regardless of the quota.

      i. Contrary to the  applicant’s  assertion,  the  Air  Force  was  not
required to use a  separate  competitive  category  for  JAs.   The  use  of
competitive categories is authorized but not mandated by  statute,  and  the
Secretary decides as a matter of policy when and how  to  use  them.   While
the JA competitive category is currently used in promotion selection  boards
for the grades of colonel and below, that has  not  always  been  the  case.
JAs used to compete against line officers for promotion at all  grades,  but
were eventually placed in a separated competitive  category  mainly  because
their  above  average  promotion  rate  caused  force  management  problems.
However, for promotion to the Reserve grades of brigadier general and  major
general, the Air Force does not, and  did  not  in  1989,  place  JAs  in  a
separate  competitive  category.   As  the  statutory  requirement  for  the
selection board to include at least  one  member  in  the  same  competitive
category as officers being considered by the board comes into play  only  if
there are multiple competitive  categories,  it  has  no  relevance  to  the
applicant’s case.

      j.    By focusing  on  himself,  the  applicant  mischaracterizes  the
purpose of the CY90 board, and thus, the SRB.  The boards  job  was  not  to
select the officer best qualified to serve in the position  of  Mobilization
Assistant to the Judge Advocate General, any more than it was to select  the
officer best qualified to serve in the position  of  Mobilization  Assistant
to the Strategic Air Command (SAC), Deputy Chief  of  Staff  for  Logistics.
All 16 of the brigadier generals considered by the CY90  board  had  already
been selected as the  best  qualified  for  a  particular  two-star  billet.
However, all 16 could not be promoted to the higher grade when  the  maximum
quota was only 7.  To the contrary, the board’s charge was to  select  those
officers - seven at mote - best qualified to serve the Air  Force  as  major
generals, without regard to their particular  career  specialty  or  current
position.  Thus, the indisputable fact the applicant was uniquely  qualified
(compared to the other 15 candidate) to serve in a  JA  position  is  simply
irrelevant.  Therefore, they recommend denial of his requests.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states the following:

      a. It is  clear  that  Congress  intended  for  applications  for  the
correction of military records and the removal of  injustice,  filed  before
the Board, to be considered by a civilian panel on behalf of  the  Secretary
and not by members of the military service against whom the  complaints  are
brought.  The Air  Force  evaluation  is  an  attempt  by  the  military  to
improperly influence the decision making process of an  impartial  board  of
civilians in  violation  of  10  U.S.C.  §  1552.   Moreover,  JAG's  active
participation in this case presents an obvious conflict  of  interest  since
he is a former member of the JAG department  challenging  irregularities  in
the general officer promotion system that the  JAG  has  endorsed  for  many
years.   Under  these  circumstances  JAG  can  hardly   be   considered   a
disinterested party to the outcome of this litigation and therefore,  cannot
assume the role of a fair and impartial advisor to the  Board.   JAG  is  an
adversary with a clear bias in this case that has been demonstrated  by  its
staunch opposition to his application over the past nearly eight  years  and
its unyielding commitment to influence the outcome  of  this  litigation  at
every possible opportunity.  Allowing the advisory opinion to  overturn  the
Board's recent decision in his favor, not only  violates  federal  law,  but
breaches rules  of  professional  legal  conduct,  and  offends  fundamental
notions of due process, warranting rejection of  the  advisory  opinion  and
the prompt grant of relief.

      b.     In  recommending  "no  further  relief"  the  advisory  opinion
misleadingly suggests that some relief has already been  tendered  when,  in
fact, since the AFBCMR’s favorable decision, no relief whatsoever  has  been
forthcoming.

      c.    This is not the first time that JAG has  played  an  adversarial
role in his case.  Early on in this  proceeding  JAG  prepared  an  advisory
opinion recommending denial of  his  application.   However,  that  advisory
opinion was never shown to him and apparently made  its  way  to  the  Board
through personnel channels.  They also played  an  influential  role  during
the Air  Force  Inspector  General's  (AF/IG’s)  investigation  of  official
malfeasance regarding the CY90 Board  process.   JAG  assigned  one  of  its
lawyers to assist the investigator in his investigation which resulted in  a
cover-up  of  the  established  malfeasance  of  several  senior  Air  Force
Officers.

      d.    JAG’s participation as an  advisor  in  this  case  presents  an
obvious conflict of interest  since  he  is  a  former  member  of  the  JAG
department.  There are a number of institutional reasons for JAG to be  less
than objective about this matter.   As  attorney  for  the  senior  military
staff, JAG's directives come from those senior military  officials  who  are
accountable for the malfeasance that has occurred in  his  case.   Moreover,
this is a unique case in which one  of  JAG's  former  general  officers  is
charging that the general officer promotion system, which  JAG  had  blessed
for years, "priority lists" and all, was substantially corrupt.

      e.    General T--- H---, Chief of Air Force Personnel from  1986-1991,
was held accountable for perpetuating  the  Air  Force's  corrupt  promotion
system through 1991, when  he  was  forced  to  retire.   General  H---  was
present at the  CY90  Board  and  guided  the  unlawful  selection  process.
Furthermore, it is apparent that  General  Hickey's  Mobilization  Assistant
(MA)  Brigadier  General R---,  although  not  initially   recommended   for
promotion, was substituted for him after he was pre-selected for  promotion.


      f.    AFGOMO manipulated the information made  available  to  the  SRB
and asked them to compare his record to  reconstructed  "benchmark"  records
of totally unknown origin, content, and authenticity, to  determine  whether
he should have been found "best qualified" for  promotion  before  the  CY90
board.

      g.    He remains confident that he  will  eventually  prevail  in  his
quest for that which is  right  and  just,  either  in  this  forum  or;  if
necessary, in a court of law.

      h.    In light of the favorable decision by the  Board,  what  remains
to be determined is the grant of appropriate relief.  He contends the  Board
has the full statutory authority it requires under  10  U.S.C.  §  1552,  to
grant the relief requested.

      i.    The legal opinion upon which they rely to challenge the  Board’s
authority to promote him directly, argues for the referral to be made to  an
SSB, rather than an SRB.  In the case of F---, cited by JAG  in  support  of
their challenge  to  the  Board’s  authority  to  correct  an  injustice  by
directing a promotion, is clearly distinguishable  from  the  instant  case.
In F---, the applicant’s records were  incorrect  and  the  Army  BCMR  took
action to correct them and provided promotional relief on the basis  of  the
corrected record.   The  court  subsequently  found  that  applicant's  case
should have gone to an SSB for reconsideration as to whether she would  have
been promoted to major had her records been correct.  There was no  evidence
the applicant's non-promotion  resulted  from  an  error  committed  by  the
original  promotion  board  or  from  the  corruption  of  the  board.    In
addressing the correction board’s authority under 10 U.S.C. § 1552 to  order
promotions, the court in F--- specifically noted the  difference  between  a
case in which incorrect records were the cause of a  non-promotion  and  one
in which the non-promotion resulted from selection board error.

      j.    The SRB did not make an affirmative finding to  "not  recommend"
him for promotion or that he was not among the "best  qualified"  candidates
for promotion.  Rather  the  SRB  stated  that  he  "should  not  have  been
recommended  for  promotion"  by  the  CY90  Board.”   This  distinction  is
extremely material, since what the SRB has done is to,  in  effect,  endorse
the actions of the CY90 Board, without having had before it the full  record
of what transpired during the CY90 Board  process,  while  totally  ignoring
the Board's decision that error and injustice had occurred as  a  result  of
the corruption of the CY90  Board.   Moreover,  the  SRB  did  not  make  an
affirmative  determination  that  the  five  selectees,  whose  questionable
"benchmark" records they supposedly examined and  compared  to  his  record,
were in fact "best qualified".  They apparently  simply  assumed  that  they
were, notwithstanding that their selection was the  product  of  a  corrupt,
"priority list" dictated, process and that at least two of these  candidates
have been shown to be not "fully qualified,”  much  less  "best  qualified".
Furthermore, the SRB did not announce any findings with respect  to  whether
he was not "fully qualified" or "best qualified", or any rationale  for  its
conclusion.  In the absence of  such  elucidation  its  conclusion  must  be
deemed arbitrary and capricious.

      k.    As a Judge for over 25 years, and in his many years  as  an  Air
Force Judge Advocate, he has never seen such  unscrupulous  conduct  in  the
defense of a case by employees of the government.  He cannot understand  why
the Air Force, or the JAG, would seek to perpetuate this travesty and  force
the resolution of this matter into the courts and the public domain,  rather
than to promptly provide relief to which he  is  entitled,  within  the  Air
Force family.   Certainly,  no  court  in  the  land  will  countenance  the
reprehensible and unlawful activity that has been amply demonstrated on  the
record before the Board.

The applicant’s complete response is attached at Exhibit ZZZ.


THE BOARD CONCLUDES THAT:

1.    Insufficient relevant evidence has been presented to  demonstrate  the
existence  of  probable  error  or  injustice  warranting  the   applicant’s
promotion to the Reserve grade of major  general.   Based  on  this  Board’s
prior decision, the applicant’s records were considered by a Special  Review
Board (SRB) to determine whether or not he would have been  recommended  for
promotion to the Reserve grade of major general by the  Calendar  Year  1990
Air Force Reserve General Officer Selection Board.  The SRB  convened  on  2
October 1998 and the applicant  was  not  recommended  for  promotion.   The
results of the SRB were forwarded to the Board for final action.   Prior  to
the Board’s review, the applicant contends that  errors  were  committed  in
regard to the convening and conduct of the SRB.   After  reviewing  the  SRB
procedures and noting the applicant’s  allegations,  we  are  not  persuaded
that any error or injustice occurred when his  records  were  considered  by
the SRB.  We  believe  the  applicant’s  allegations  have  been  adequately
addressed by the Chief, General Law Division and we are  in  agreement  with
their recommendation.  Therefore, we adopt their rationale as the basis  for
our conclusion that applicant has  not  been  the  victim  of  an  error  or
injustice.  The convening of the SRB allowed the applicant’s records  to  be
compared with a sample of records  that  were  and  were  not  selected  for
promotion to the Reserve grade  of  major  general  by  the  CY90  selection
board.  Since we have no evidence to suggest the SRB  was  not  convened  in
accordance with the procedures established in the Secretary’s memorandum  of
instruction and the applicant was not recommended for promotion by the  SRB,
we find no basis upon which to recommend favorable  action  on  his  request
for promotion to the Reserve grade of major general.

2.    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 issues  involved.   Therefore,  the  request
for a hearing is not favorably considered.


THE BOARD DETERMINES THAT:

The applicant be notified that the additional  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 20 September 1999, under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Mr. Charles E. Bennett, Member
                  Mr. Henry Romo, Jr., Member




The following documentary evidence was considered:

      Exhibit QQQ.  Addendum to Record of Proceedings, W/atchs.
      Exhibit RRR.  Letter, AFGOMO, dated 2 Oct 98.
      Exhibit SSS.  Letter, Applicant, dated 23 Nov 98, w/atchs.
      Exhibit TTT.  Letter, Applicant, dated 27 Nov 98, w/atchs.
      Exhibit UUU.  Letter, AFBCMR, dated 18 Mar 99.
      Exhibit VVV.  Letter, Applicant, dated 20 Apr 99.
      Exhibit WWW.  Letter, AF/JAG, dated 28 Apr 99.
      Exhibit XXX.  Letter, AFBCMR, dated 5 May 99.
      Exhibit YYY.  Letter, Sen. Warner, dated 17 May 99, w/atch.
      Exhibit ZZZ.  Letter, Applicant, dated 3 Jun 99, w/atchs.
      Exhibit AAAA. Letter, Sen. Sarbanes, dated 2 Sep 99, w/atchs.




               BARBARA A WESTGATE
                                         Panel Chair