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

IN THE MATTER OF:      DOCKET NUMBER:  93-02840

                             COUNSEL:  None

                             HEARING DESIRED:  No


___________________________________________________________________

RESUME OF CASE

In an application dated 30 June 1993, the applicant  requested  the
Officer Performance Report (OPR) rendered for the period 27 October
1987 through 26 October 1988, be declared void and removed from her
record.  Her nonselections for promotion to the grade of  major  by
the Calendar Years 1992 and 1993B (CY92 and CY93B) Major  Selection
Boards be set aside.  She be promoted to the grade of major by  the
Calendar Year 1992 selection board, or, in the alternative, she  be
considered for promotion to the grade of major by Special Selection
Board (SSB) for  the  CY92  and  CY93B  selection  boards  and,  if
selected, she be given an appropriate effective and date of rank.

On 29 March 1994, the Board considered and recommended granting the
applicant’s request  to  void  the  OPR  rendered  for  the  period
27 October 1987 through 26  October  1988.   In  addition,  she  be
considered for promotion to the grade of  major  by  SSBs  for  the
CY92C and CY93B selection boards.  The Board was not  persuaded  to
set aside her nonselections for promotion or promotion to the grade
of major through the correction of records process. (Exhibit G)

Following the removal of the OPR rendered for the period 27 October
1997 through 26 October  1988,  the  applicant  had  her  Promotion
Recommendation Form (PRF) for the CY92C Board reaccomplished by her
senior rater in accordance with AFI 36-2401.

On 27 June 1994, the applicant was  provided  reconsideration,  and
nonslected, for promotion to the grade of  major  by  SSB  for  the
CY92C and CY93B Major Selection Boards.

On 8 July 1997, applicant submitted  additional  documentation  and
requested her case be reconsidered.  Applicant requests that:

1.    Her PRFs for the CY92C and CY93B  Boards  be  upgraded  to  a
“Definitely Promote” (DP).

2.    All promotion nonselections, including SSBs, be set aside.

3.    She be promoted to the grade of major as if selected  In-the-
promotion-zone (IPZ) by the CY92C Major Selection Board.

4.    Her record  be  corrected  to  reflect  that  she  served  on
continuous  active  duty  with  all  pay,  entitlements  and  other
benefits since she was separated.

Applicant’s complete submission, with attachments, is at Exhibit H.

In her rebuttal dated 17 April 1998, applicant requests that:

1.    Her “corrected” CY92C  PRF  be  corrected  by  replacing  the
sentence stating “...top 20 percent of my Promotes”  with  accepted
Air Force Military Center  (AFMC)  language  “The  AFCM  Evaluation
Board ranked her in the Top 20% of the in-the-promotion-zone  (IPZ)
Promotes.  Absolutely promote.”

2.    She be reinstated to  active  duty  and,  at  a  minimum,  be
afforded the opportunity to meet a legally conducted SSB.

Applicant’s complete submission, with attachments, is at Exhibit L.

In her rebuttal dated 30 November 1998, applicant requests that the
Supplemental  Evaluation  Sheet,  AF  Form  77,  for   the   period
28 October 1987 through  26  October  1988,  be  removed  from  her
record.

Applicant’s complete submission, with attachments, is at Exhibit Q.

___________________________________________________________________

AIR STAFF EVALUATION:

The Directorate of Personnel Program Mgt, AFPC/DPPPEB, reviewed the
application and states  the  applicant  contends  a  “Top  Promote”
system used by the Air Force Military Center (AFMC) was not applied
consistently; however, during the CY92 and  CY93  promotion  cycle,
“Top Promote” statements were neither encouraged nor prohibited  by
regulation. AFR 36-10 (Aug 88), Chapter  4,  para  4-14(b),  states
that “in all cases, a senior  rater  has  the  final  authority  to
determine the content of the  PRF  he  or  she  prepares....”   The
awarding of a “DP” is used to send a clear signal that  an  officer
is clearly above his peers.  The  applicant  makes  no  mention  or
provides no evidence as to whether or not she was competed  by  her
senior rater for an aggregate or carryover  “DP”  during  the  AFMC
Management Level Evaluation Board  (MLEB).   In  addition,  if  the
officer was competed, there is no evidence to show how she compared
to her peers.  Stratification among promotes by  senior  raters  is
allowed, for not every officer can be promoted  with  a  “Promote.”
The applicant contends that AFR 36-10 states there are  only  three
PRF ratings: Definitely Promote, Promote, and Do Not Promote.  This
is only in reference to block IX, Overall  Recommendation.   Again,
stratification by a senior rater of his/her eligibles is acceptable
under AFR 36-10 and the new AFI 36-2402.   The  applicant’s  second
contention is that she was  not  afforded  the  two  “fresh  looks”
required by law.  First, per AFR 36-10, para 4-13(b), the  MLEB  is
required to review all in/above-the-promotion-zone (I/APZ) officers
as a quality review.  Second, there is no requirement in AFR  36-10
for an officer to be aggregated by their senior rater for award  of
a “DP.”  The question that the applicant needs to raise is, was she
competed for a “DP” by her senior rater at the AFMC MLEB or did she
receive an outright “Promote?”  In either case, the  officer  would
receive two “fresh looks” by the  MLEB,  either  as  an  above-the-
promotion-zone (APZ) officer with a “Promote” or as an APZ  officer
submitted for an aggregate or carryover “DP.”  There is no evidence
provided to conclude her record was not looked at twice.  A PRF  is
considered to be an accurate assessment  of  an  officer’s  ability
when it is rendered.  The PRF is not the only  document  considered
by a Central Selection Board.   The  PRF,  along  with  many  other
factors, such as an officer’s Record  of  Performance  and  Officer
Selection Brief are considered in determining  which  officers  are
most eligible for promotion.  Despite the extensive  technical  and
legal jargon provided by the applicant, there  is  no  evidence  to
support her claim that she should have her PRF upgraded to a  “DP.”
Stratification among PRFs is important and is a tool used by senior
raters to make their officers stand out during both a MLEB and  the
Central  Selection  Board.   Again,  senior   raters   are   solely
responsible for the  content  in  a  PRF.   There  is  no  evidence
provided which shows that Air Force Regulations and guidelines were
not adhered to.  They recommend the applicant’s  PRF  remain  as  a
“Promote.”

A complete copy of the evaluation is attached at Exhibit I.

The Chief of  Ops,  Selection  Board  Secretariat,  Directorate  of
Personnel Program Mgt,  AFPC/DPPB,  reviewed  the  application  and
states that applicant contends the SSB scoring system is “arbitrary
and capricious” because of  the  scoring  scale  used  and  tainted
record  sampling.   They  do  not  agree.   Applicant  attempts  to
discredit the scoring scale used by the Air Force for many years on
its selection boards.  That scoring scale is from 6 to 10  in  half
point increments.  Board members are briefed to try to apply a  7.5
score to an “average” record and try  to  use  the  entire  scoring
range throughout the  evaluation  process.   Recognizing  that  the
scoring of records is a subjective process, it should  come  as  no
surprise that individuals may have a slightly different  definition
of what constitutes an “average” record.  Additionally, history has
revealed that a given board member may be  a  more  liberal  scorer
than other board members and have a higher distribution of  scores,
i.e., from 7 to 10.  On the other hand, a given board member may be
a more conservative scorer and have a distribution of scores from 6
to 9.  In either of these examples a 7.5 score would not likely  be
the “average” record.  As long as each board member applies their
individual standard consistently throughout  the  scoring  process,
each consideree will get a fair  and  equitable  evaluation.   Only
when two or more  board  members  score  the  same  record  with  a
variance of two or more points, i.e., 7 and 9 or 7 and 9.5, does  a
significant disagreement occur and through discussion the  variance
is resolved,  i.e.,  less  than  two  points  variance.   Applicant
further states the benchmark records are “loaded” with the  highest
quality from among the  “gray  zone”  records  and  refers  to  the
talking paper that was written six years prior to  her  board.   As
this talking paper was accomplished 14 years ago, they  cannot  say
with any great certainty what the author meant in the verbiage that
was used.  However, they think  it  refers  to  not  using  anomaly
records as benchmarks.  For  example,  they  normally  do  not  use
records from the “gray” which are interservice transfers  or  those
who had breaks in service.  A search  of  their  files  revealed  a
subsequent talking paper on the  same  subject  which  was  written
31 March 1986  and  more  accurately  conveys  their  criteria  for
selecting benchmark records.  Additionally,  AFR  36-89,  dated  17
April 1992,  also  clarifies  procedures  for  selecting  benchmark
records.  Despite the verbiage which was used in the 7 January 1984
talking paper, their current  procedures  for  selecting  benchmark
records have  been  unchanged  over  the  years  and  are  in  full
compliance with applicable guidelines.  The applicant asserts  that
the central boards upon which the benchmark records are based  were
held in violation of statute and directive.  As  a  result,  a  SSB
cannot replicate the original board as the results of the  original
board are void ab initio.  They do not agree.  The  central  boards
were held in accordance with applicable statutes and directives  as
stated  in  the  following  paragraphs.   Applicant  contends   her
promotion boards were in violation of various sections of Title  10
United  States  Code.   They  do  not  agree.   Air   Force   legal
representatives have reviewed their procedures on several occasions
during the past few years  and  have  determined  those  procedures
comply with applicable statutes and policy.  The Air Force has used
the panel concept for many years in  conducting  selection  boards.
The panel concept has safeguards to ensure an equal distribution of
the quality spectrum of records to each panel.  When more than  one
panel scores a given competitive category, all the eligible records
are aligned in reverse social security  number  sequence  and  then
distributed in blocks of 20 records to each panel, i.e., records  1
through 20 to panel one, 21 through 40 to panel two, 41 through  60
to panel three, etc.  As each panel scores its share of records, an
order of merit (OOM) is formed.  One of the major  responsibilities
of the board president is to review the orders of merit  to  ensure
consistency of scoring on each panel  and  consistency  of  quality
among the panels.  To do this the board president will do a quality
review on each OOM in and around where the  selection  rate  falls.
For example, assume the selection rate for  a  given  board  is  35
percent.  The board president will do a quality review on each  OOM
in and around where the 35 percent level falls (this has nothing to
do with the numerical score given by each panel,  i.e.,  panel  one
may be a liberal scoring panel and have a score of 41 while panel
two may be a conservative scoring panel and have a  score  of  39).
Without exception, the quality of records has always been identical
at the same percentage level on each OOM.  The  applicant  contends
that the Air  Force  has  neither  developed  nor  issued  standard
operating procedures for selection  boards.   They  do  not  agree.
Upon approval and publishing of  DoDD  1320.12,  dated  4  February
1992, all Air Force promotion boards were placed on hold pending  a
complete rewrite of  AFR  36-89,  Promotion  of  Active  Duty  List
Officers (subsequently superseded by AFI 36-2501).  Only after  the
new AFR 36-89 was approved  by  the  Office  of  the  Secretary  of
Defense and published 17 April  1992,  did  they  resume  promotion
boards.  The quality review worksheet the applicant  refers  to  is
computer generated scoring data on individual  considerees.   There
is no form.  It is transitory in nature, and destroyed  along  with
other scores and administrative paperwork from the selection boards
upon approval of the board results by the  Assistant  Secretary  of
Defense (Force Management Policy), in accordance with AFI  36-2501,
paragraph 3.3.2.  Applicant contends  the  board  president’s  role
violates   DoDD   restrictions.    They   do   not   agree.     The
actions/responsibilities of each board president are in  compliance
with governing directives.  The applicant contends  the  Air  Force
selection boards are in violation of DoDD  1320.12.   They  do  not
agree.  This directive requires  individual  selection  boards  for
each competitive category and permit  the  boards  to  be  convened
concurrently.  All Air Force  promotion  boards  comply  with  this
directive.  Each competitive category competes only within  itself,
i.e., the chaplain eligibles only compete  against  other  chaplain
eligibles, and the nurse corps eligibles only compete against  each
other.  They then consolidated each competitive categories’ results
into a single package for submission to the Secretary  of  the  Air
Force.

A complete copy of the evaluation, with attachment, is  at  Exhibit
J.

The Staff Judge Advocate, AFPC/JA,  reviewed  the  application  and
states that although not specifically couched as such by either the
applicant or the Board, it appears the applicant's  latest  request
essentially represents a request for reconsideration of the Board's
original decision based upon newly discovered  evidence;  i.e.,  no
new application form (DD Form 149) has been filed and the Board  is
still referencing the original Docket Number.  By  regulation,  the
only basis upon which an application can be reconsidered is if  and
when the applicant submits "newly discovered relevant evidence that
was not available when the application was previously  considered."
AFI 36-2603, para 6. In this  case,  the  applicant  has  submitted
nothing that meets this criterion; her brief offers no new evidence
at all, but only a series of arguments supported almost exclusively
by the author's opinions.  To  the  limited  extent  that  any  new
evidence was offered, such evidence was clearly  available  at  the
time the original application was submitted.  The only circumstance
that has changed is that applicant has now obtained assistance to
present new arguments to support both her original  claim  and  her
new  claim  for  direct  promotion.   However,  "new  or   rehashed
arguments do not constitute ‘new evidence’ as that term is used  in
[AFR 31-3]" [since replaced by AFI 36-2603].   OPJAGAF  1990/53,  9
August 1990, 4 Civ.L.Ops. 343 (1990).  As such, it is their opinion
that the applicant has failed  to  meet  the  requisite  regulatory
standard for reconsideration.  They recommend  the  application  be
denied on that basis.


Notwithstanding their  strong  recommendation  that  this  case  be
denied for  the  applicant's  failure  to  meet  the  criteria  for
reconsideration, they will address the  merits  of  her  arguments.
They begin with her claim that she was the victim of illegal MLEB
procedures; i.e., she challenges what she believes to be  “illegal,
‘command indorsement special promote’ recommendations” - alleging a
system where stratification of “promote”  recommendations  occurred
in  violation  of  the  existing  regulation   (AFR   36-10).    In
particular,  she  states  that  the  "top   promote"   system   was
unauthorized, the system was not uniformly  applied,  and  she  was
prejudiced by its use.

The  author  of  the  applicant's  brief   claims   that   “illegal
procedures” used by certain  MLEBs  in  the  Air  Force  identified
selected officers who received only a "promote" recommendation  for
special command endorsement  ("special  promote"  recommendations).
This, he states, first violated the governing regulation,  AFR  36-
10,   because   the   regulation   did   not   provide   for   such
recommendations.  The author  also  contends  that  MAJCOM  special
promote systems took away promotions from officers who  received  a
"legitimate" promote recommendation, thereby diluting the value  of
the promote recommendation he received.  At the outset, the  entire
Air Force promotion recommendation process is totally a creature of
Air Force regulation; it is not governed at all by statute  or  DOD
directive.  Consequently, its “legality” can be  tested  solely  by
virtue of whether the Air Force has followed  its  own  regulation.
In their opinion, by  its  very  terms,  the  regulation  does  not
prohibit the process the  applicant  claims  was  used  by  certain
commands.  Applicant also argues that the top promote  program  was
improper because it was not applied uniformly across the Air Force.
  As  a  consequence,  she  argues,  she  was  at   a   competitive
disadvantage in competing for  these  recommendations  since  other
commands had different "top promote" quotas.  While it is true that
AF/CC, upon the recommendation of  the  Officer  Evaluation  System
(OES) Review Group, eventually eliminated the above  stratification
system at management levels, it was because of feared problems with
perceptions of fairness, not because the system was  illegal.   The
system that was used in many commands, though ultimately determined
to be flawed, never operated in contravention of the governing  Air
Force regulation, AFR 36-10.  They have previously opined that,  by
its very terms,  the  regulation  does  not  prohibit  the  use  of
stratified "promote" recommendations; i.e., delineating among
"promotes" to describe a particular  officer's  relative  potential
meets the regulation's requirement for an assessment of the ratee's
performance  based  potential  to  support  the  overall  promotion
recommendation, and it violates neither the letter  nor  spirit  of
any portion of the regulation.

Applicant next attacks what is characterized as an  “arbitrary  and
capricious SSB scoring system.”  On that issue, they defer to,  and
agree with, the analysis provided by AFPC/DPPB in their  5 November
1997 advisory.  In their opinion, the  Air  Force's  SSB  procedure
fully comports with the 10 U.S.C.  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  she
has failed to do so.

The rest of applicant's brief presents a slightly modified  version
of the author's familiar arguments that the Air  Force's  promotion
board procedures violate  both  statute  and  DOD  Directive.   The
author begins with a contention that  Air  Force  promotion  boards
violate 10 U.S.C. 611 because promotions are actually determined at
"panel level" as opposed to  the  statutory  requirement  that  the
board as a whole determine the selections.   In  their  view,  this
argument does nothing more than attempt  to  amplify  the  author’s
more familiar allegations that the Air Force process violates 10 U.
S.C. 616 and 617, as well as DOD Directive 1320.12.

Applicant next contends that the Air Force violated 10  U.S.C.  615
and DOD Directive 1320.12 by  failing  to  issue  written  standard
operating procedures.  As a result of the  requirements  levied  by
the 4 February 1992 version of the Directive, the Air Force rewrote
AFR 36-89 to comply with those requirements  and  published  it  on
17 April 1992.  In their opinion,  this  revised  directive  (since
replaced by AFI 36-2501) fully complies with the DOD Directive, and
the fact that not every  single  procedure  utilized  by  selection
board personnel is  described  in  detail  does  not  impeach  that
conclusion.  In addition, as noted by AFPC/DPPB  in  its  advisory,
the revised AFR 36-89 was approved by the Office of  the  Secretary
of Defense as having complied with the Directive.

In conjunction with this argument, applicant also attacks as  error
the role of the board president in the Air Force promotion process,
in particular, arguing that the board president’s duties in the Air
Force process violates  DOD  Directive  1320.12,  Section  F,  para
2(a)(1).   They  disagree.   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,  violate  any  statute  or  directive  or
constrain the board, in any manner, from recommending for promotion
the best qualified among the fully qualified officers being
considered.  Moreover, applicant has  offered  no  proof  that  the
president of her or any Air Force selection board  has  ever  acted
contrary to law or regulation.  In the absence of evidence  to  the
contrary, the board president and other members of  the  board  are
entitled to the presumption that they carried out their duties  and
responsibilities properly and according to law.  Sanders v.  United
States, 594 F.2d 804,219 Ct.Cl. 285 (1979).

In his most familiar attack on the Air Force promotion system,  the
author of the applicant’s letter contends that Air Force  promotion
boards violate 10 U.S.C. 616 and 617.  Specifically, he 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 U.S.C. 616  or
the  resulting  certification  required  by  10  U.S.C.  617.    In
response, they note first that no  provision  of  law  exists  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) Technical Corrections  Act  (P.L.  97-22)  specifically
references panels  as  a  type  of  administrative  subdivision  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,  the  language  of  10  U.S.C.  616(a)  and  (c)  (the
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  among  the   panels   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  their  opinion,  that  is  enough  to  assure
compliance   with   all   the   statutory   requirements.     NOTE:
Notwithstanding the opinion cited in Roane v. U.S., 36 Fed.Cl.  168
(1996), two other judges from the United States  Court  of  Federal
Claims have held otherwise, determining that the Air Force’s
promotion system fully complies with the law.  See Small  v.  U.S.,
37 Fed. Cl. 149 (1997) and Neptune  v.  United  States,  1997  W.L.
41210 (Fed.Cl.).

Applicant next alleges that the Air Force  violated  DOD  Directive
1320.12 by convening panels and not separate  promotion  boards  to
consider the various competitive categories.  The relevant  portion
of the Directive provides:

      D. POLICY

          1.......

            a.   Centralized Selection.  To ensure fairness in  the
                 promotion  selection  process   and   a   balanced
                 appraisal of the needs  of  the  Military  Service
                 concerned, a single board  shall  be  convened  to
                 consider all eligible officers in the  same  grade
                 and competitive category for promotion  to  grades
                 above captain in the Army, Air  Force,  or  Marine
                 Corps; or lieutenant in the Navy, except that:

                (1)....


                (2)....


            b.   Concurrent Boards.  Selection boards convened  for
                different competitive categories or grades  may  be
                convened  concurrently  when  practicable  at   the
                discretion  of  the  Secretary  of   the   Military
                Department concerned.

Applicant argues 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 their 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.  In fact, each of the
nonline competitive panels are panels in name only; they-along with
the  line  competitive  category   panels-are   actually   separate
promotion boards for purposes of the statutes  and  DOD  Directive.
Consequently,  they  fulfill  all  the  requisite   statutory   and
regulatory requirements.

For the reasons outlined  above,  it  is  their  opinion  that  the
applicant's request for reconsideration should be denied; applicant
has failed to meet the requisite criteria for reconsideration  and,
on the merits, has failed to present relevant evidence of any error
or injustice warranting relief.

A complete copy of their recommendation is attached at Exhibit K.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed  the  Air  Staff  evaluations  and  provided
specific comments.  She also states that the first question  before
the Board is whether  her  request  contains  new  evidence,  i.e.,
“newly discovered relevant evidence that was not available when the
application was previously considered.”  The centerpiece upon which
her request was based was  the  AFMP/DPAQ  message.   Because  AFPC
apparently wants the Board to ignore this evidence, they chose  not
to comment on it.  This document states verbiage on PRFs is limited
by the MLEB – which totally contravenes AFR 36-10, para 4-9,  which
states the senior rater is “solely responsible” for the content  of
the PRF.  This message is “factual evidence” –  clear,  convincing,
unequivocal evidence – that the mandate of regulation was  ignored.
Senior raters, not MLEBs, determine the language on PRFs, but  this
message clearly states “The words ‘Definitely Promote’ will not  be
used in a ‘promote’ PRF.”  Unfortunately there were other  problems
with the process used by her senior rater which  were  contrary  to
regulation.  At ASC a mini board was used by General S--- (the same
officer who had used mini  boards  while  at  Hanscom).   A  second
problem is that at AFMC, officers could not  be  considered  for  a
“top promote” strictly only because he/she APZ.   Clearly  priority
lists required is in direct violation of AFR 36-10.  In fact, these
priority lists were required both from the  rating  chain  and  the
“functional” chain of command.  The biggest  problem  is  the  fact
AFMC did not allow its APZ officers to compete for a “top promote.”
  Violation  of  this  substantive,  procedural  entitlement  to  a
specific process effectively denied her any capability  to  compete
on a fair and equal  basis  with  her  contemporaries  for  a  “DP”
recommendation.  In her  petition,  she  pointed  out  the  scoring
system used to determine selection by SSB is clearly arbitrary  and
capricious as its design ignored the most relevant factor  apparent
in  the  Air  Force  panel  system:  The   qualities   of   records
between/among panels is different.  One can only conclude  omission
of relevant factors produces a scoring/selection  system  which  is
not only  arbitrary  and  capricious,  but  patently  unfair.   She
pointed out that she was not eligible for an SSB due to her pending
separation.  The key  to  this  case  is  the  “process”  by  which
selection boards operated.  Because her previous passovers were not
voided by the AFBCMR, she had 65 days remaining  before  separation
when her SSB convened on 27 June  1994.   She  was  ineligible  for
promotion consideration.  In a
nutshell, her pending separation should have been  canceled  before
her file was considered for promotion.  Although  AFPC  chooses  to
ignore it, the evidence in her case proves the  Board’s  preemptive
decision to terminate her active service earlier than  required  by
the  SSBs  which  considered  her  file  was  both  arbitrary   and
capricious.  At minimum, her nonselections  should  have  been  set
aside and she should not have been separated until the first day of
the seventh month following the Secretary of the  Air  Force  (SAF)
approval of the SSB results.  But there is much more at issue here.
 The “corrected” PRF that remains defective.  She has  met  central
and special selection boards as a result of this error, but as  the
PRF itself is  not  as  it  would  have  appeared  at  her  initial
consideration, and because of internal AFMC policies, she  was  not
even allowed to compete for a “top promote” APZ.  The only full and
thorough relief is to upgrade this PRF to  a  “DP”  recommendation.
Her case is about defective selection boards - both the central and
special promotion boards that considered  her  file.   The  massive
procedural errors at the original central promotion boards, coupled
with the internal procedures of the SSB, leave the  SSB  unable  to
resolve her promotion status.  Clearly, it is within  this  Board’s
prerogative, and actually its moral sanction  to  provide  thorough
and fitting relief.  Once error or injustice has  been  identified,
relief is not discretionary but automatic.

Applicant's complete response, with attachments, is at Exhibit L.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, Evaluation Programs  Branch,  Directorate  of  Personnel
Program  Management,  AFPC/DPPEB,  reviewed  this  application  and
states that during the affected time frame, the Air  Force  neither
prohibited nor condoned the stratification of “Promote” PRFs  by  a
Management Level Review (MLR).  However,  in  1995,  an  Air  Force
review   group    identified    misperceptions    concerning    the
stratification of “Promote” ratings  and  even  though  a  separate
analysis of such comments showed they did not impact the number  of
promotions a MAJCOM received, the group recommended the elimination
of such rankings to assure everyone competed using the same  rules.
The applicant presents a unique case regarding  the  “Top  Promote”
stratification.  First, she never  actually  competed  at  her  MLR
based upon her senior rater’s statement; however, because she had a
significant change to  her  record,  under  AFI  36-2401,  she  was
entitled and granted a new PRF from her  senior  rater,  which  was
subsequently approved by the AFMC MLR President.  In his supporting
letter, the senior rater  states  based  upon  the  change  to  the
applicant’s record, he would have competed her  in  the  carry-over
phase.  In the new PRF, her senior rater stratified her compared to
his other officers.  This new PRF thus met a SSB and the  applicant
was non-selected.  Since that time, the applicant has  uncovered  a
message from HQ AFMC which provided guidance to all AFMC senior
raters in how to use the “Top Promote” statement  on  a  PRF.   The
applicant contends the PRF which met the SSB should  have  included
this “canned” statement vice the  stratification  from  her  senior
rater.  Unfortunately, the applicant never met this MLR and  it  is
impossible to re-create the actual MLR to  determine  how  she  may
have faired.  They note that  the  date  of  the  HQ  AFMC  message
provided by the applicant was October 1992, which was clearly after
the applicant’s Majors Board in August 1992 and  the  HQ  AFMC  MLR
which would have been held sometime in June 1992.  The  applicant’s
second contention is that she  was  not  afforded  the  two  “fresh
looks” required by law.  First, per AFR 36-10,  para  4-13(b),  the
MLEB is required to review all I/APZ officers as a quality  review.
Second, there is no requirement in AFR 36-10 for an officer  to  be
aggregated by  their  senior  rater  for  award  of  a  “Definitely
Promote.”  The applicant provides copies of  slides  as  supporting
evidence that she was not allowed to be submitted due to her status
as  an  APZ  officer;  however,  they  note  these  slides  provide
inconclusive  proof,  and  are  in  no  way  “official”  Air  Force
regulations.  The applicant is clearly focusing on  the  fact  this
briefing mentions  only  IPZ  officers  on  the  slides.   However,
contrary to her claim, HQ AFMC,  in  response  to  the  applicant’s
Freedom Of Information Act (FOIA) request in June 1997, stated  “if
not being competed, the I/APZ record/PRF is reviewed  by  at  least
three senior raters...”  This is clearly within the bounds  of  AFR
36-10.  The applicant has provided no other proof that  her  record
was not reviewed by the MLR.  Whether or not she actually  competed
at the 1993 AFMC MLR is irrelevant because she was not required  to
compete there.  The only requirement  was  for  her  record  to  be
quality reviewed.   This  is  clearly  within  the  senior  rater’s
discretion under AFR 36-10.  The applicant further provides a  copy
of an interoffice memorandum which she concludes  proves  that  her
senior rater used a “mini-board” in the preparation of her 1993 PRF
(APZ).  The only evidence this memorandum provides  is  her  senior
rater requested his subordinate  directors  rank  order  their  own
eligible officers.  Again, this is clearly allowed under AFR  36-10
and this does not constitute  a  “mini-board”  as  claimed  by  the
applicant.  They defer their recommendation to the AFBCMR.

A complete copy of their recommendation is attached at Exhibit M.

The Chief of  Ops,  Selection  Board  Secretariat,  Directorate  of
Personnel Program Mgt,  AFPC/DPPB,  reviewed  the  application  and
states that the  applicant’s  latest  application,  dated  17 April
1998, regarding SSB  and  central  selection  board  procedures  is
nothing more than a reiteration of her  application  dated  8  July
1997.  Their advisory dated  5  November  1997  has  addressed  the
issues.  They can add nothing further.

A complete copy of their recommendation is attached at Exhibit N.

The Staff Judge Advocate, AFPC/JA,  reviewed  the  application  and
states that  as  previously  noted,  the  applicant’s  most  recent
submission constitutes a request for reconsideration which fails to
meet the regulatory requirements therefor.  AFI  36-2603,  para  6.
The author of the applicant’s 17 April  1998  brief  disputes  that
conclusion and  cites  a  1992  AFMC/DPAQ  message  as  proof  that
applicant has filed real “factual  evidence”  to  satisfy  the  AFI
requirement.  That  document,  however,  like  most  of  the  other
“evidence” offered by the author, was reasonably available  at  the
time the applicant  was  previously  considered.   The  message  in
question is dated in 1992, the year before the original application
was file on 30 June 1993.  The other so-called  evidence  was  also
either reasonably available or is not relevant and/or  material  or
merely constitutes the author’s unsupported opinion.  The fact that
the applicant has obtained the evidence now  only  because  of  the
efforts of a tenacious “advisor” does not change the  character  of
that evidence as reasonably available at the time the applicant was
previously considered.  No evidence has been presented to establish
that the Air Force improperly withheld this or any evidence or that
the applicant attempted to secure any evidence at  the  appropriate
time.   In  short,  the  applicant  fails  to  meet  the  requisite
regulatory standard for reconsideration, and  they  recommend  that
the application be denied on that basis.  It is their opinion  that
the applicant has failed to prove relevant evidence of any material
error or injustice warranting relief.  More  importantly,  she  has
failed to meet the requisite criteria for  reconsideration  of  her
application.  They recommend that the application be denied.

A complete copy of their recommendation is attached at Exhibit O.

___________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed  the  Air  Staff  evaluations  and  provided
specific comments.  She also states that she asks the Board to take
a few minutes to review “where I’ve been” and  “how  I  got  here.”
Little of this is immediately apparent from the record  before  the
Board. Her problem began while she was at HQ SAC  in  1987.   While
she was “officially” assigned to one office, she was “loaned”  full
time to a wholly separate office.  Her official rater resented  the
loan which left him administratively responsible  for  her  without
allowing  him  the  benefit  of  her  work.   The   situation   was
exacerbated by the fact that her official rater did not have access
to, nor a verified need to know,  many  of  the  projects  she  was
involved with.   This  left  her  with  a  deliberately  weak  OPR.
Although this OPR was later removed on a technicality (insufficient
supervision), the technicality more akin to  inept  supervision  as
she learned her rater tried to  ruin  her  career  by  deliberately
undermining her professional reputation to those above him  in  her
rating chain.  When she later talked to her  additional  rater,  he
told her quite candidly that he was surprised that she was still in
the Air Force.  Her official  rater  explained  her  official  duty
absences as a lack of dedication on her part and a generally poor
attitude towards the Air Force.  When her additional rater included
deliberately derogatory comments in  his  section  of  the  OPR  he
intended them as a warning to her and he instructed  her  rater  to
pass them to her.  When she never contacted  the  additional  rater
about the comments (because they were  never  passed  to  her),  it
confirmed his erroneous opinion that she couldn’t be bothered about
the Air Force or her career.  Her reviewer confirmed  that  he  had
been misled about her performance.  If he had  been  aware  of  the
truth he would have never concurred with  the  report  as  written.
However, it took nearly a year before this error was corrected  and
the OPR was removed from her file.  What followed was  her  attempt
to catch up after the tainted report was  removed  from  her  file.
She was reassigned to AFMC and her OPRs from there show  she  never
let up.  However, because the tainted OPR was still  on  file  when
her senior rater completed her PRF, she only received  a  “promote”
recommendation.  She had been told she had been close to a “DP” and
possibly a “top promote” from within the command, but she was  also
told that neither was possible in the  competitive  environment  as
the SAC OPR held her back.  However, after the OPR was removed, her
senior rater was quite willing to support upgrade of her PRF to  an
AFMC “top promote.”  Please review the  appeal  package  which  was
ultimately approved by AFPC’s blue suite board.  Note that not only
did her senior rater approve the change to the PRF, but the AFPC/CV
did as well.  Note, too, the whole  appeal  was  processed  through
AFMC/DP, and ultimately AFPC.  In spite of the intent of her senior
rater and  the  AFMC  MLEB  president,  she  did  not  end  with  a
legitimate AFMC “top promote”  recommendation.   She  only  learned
after she hired a processional consultant that  AFMC  top  promotes
had very specific language – and her corrected PRF  did  not.   Why
didn’t AFMC/DP advise her of the specific language  requirement  in
AFMC “top promotes” knowing that only that language was allowed  to
be used?  Why  didn’t  AFMC/DP  advise  her  senior  rater  of  the
specific language requirement in AFMC “top promotes”  knowing  that
only that language was allowed to  be  used?   Why  didn’t  AFPC/DP
advise AFMC/CV of the specific language requirement  in  AFMC  “top
promotes” knowing that only that language was allowed to  be  used?
Why did AFPC approve an appeal that was  not  consistent  with  the
specific  language  requirements  AFMC  had  used  in  their   “top
promotes” program?  She must conclude that the personnel folks knew
exactly what they were  doing.   She  does  not  doubt  her  senior
advisor’s  intent.   Nor  does  she  doubt  the  AFPC/CV’s  intent.
However, it is quite clear the personnel folks knew  the  resulting
PRF corrections wouldn’t be a full  measure  of  relief.   And,  of
course, none of them advised her  senior  rater  so  he  could  act
accordingly.  But there is more as the personnelists strike  again.
She must say it’s strange for AFPC to object to removal  of  an  AF
Form 77 that documents an item that itself should haven’t  been  in
the record.  It is strange, too, AFPC  cannot  simply  provide  the
required operating procedures that SAF is required to have approved
and issued and that AFPC is required to  use  for  selection  board
operations and support.  It is also strange AFPC doesn’t even  seem
to know which cases are pending in court: Roane has never appealed
contrary to the AFPC claim.  And of course, she did not expect AFPC
to advise the board of the appeals court decision in  Small  as  it
totally undermines the position they have taken in her  case.   She
simply asks the Board for the same fair treatment they have  always
provided.  The  issues  are  not  complex,  and  she  believes  the
evidence supports her position.

Applicant's complete response, with attachments, is at Exhibit Q.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
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.   In  regard  to  the
applicant’s request that the Supplemental Evaluation  Sheet,  AF  Form
77, for the period 28 October 1987 through 26 October 1988, be removed
from her record, the Board notes that the AF Form  77  is  the  method
routinely used to fill the gap in a member’s  record  when  the  Board
grants an applicant’s request to remove an OPR.  This was done in  the
applicant’s case and her request to removed the AF Form 77 is  denied.
Applicant’s numerous contentions  concerning  alleged  inequities  and
regulatory violations and statutory compliance  of  central  selection
boards, the detailed comments provided by the appropriate  offices  of
the Air Force adequately address these  issues.   We  agree  with  the
opinions  and  recommendations  of  the  Air  Force  and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.  Therefore, in  the  absence
of evidence to the contrary, we find no compelling basis to  recommend
granting the relief sought in this application.

_________________________________________________________________

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 20 April 1998, under the provisions  of  AFI  36-
2603:

      Ms. Martha Maust, Panel Chair
      Mr. Joseph G. Diamond, Member
      Mr. Charlie E. Williams, Jr., Member
      Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit G. ROP, dated 21 Apr 94.
      Exhibit H. Applicant's Response, dated 8 Jul 97, w/atchs.
      Exhibit I. Letter, AFPC/DPPPEB, dated 10 Sep 97.
      Exhibit J. Letter, AFPC/DPPB, dated 5 Nov 97.
      Exhibit K. Letter, AFPC/JA, dated 30 Dec 97.
      Exhibit L. Applicant’s Response, dated 17 Apr 98, w/atchs.
      Exhibit M. Letter, AFPC/DPPPEB, dated 10 Jun 98.
      Exhibit N. Letters, AFBCMR, dated 19 Jan 98 and 17 Aug 98.
      Exhibit Q. Applicant’s Response, dated 30 Nov 98, w/atchs.





                             MARTHA MAUST
                             Panel Chair