RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
INDEX CODE: 111.01, 131.09,
110.03, 129.04, 128.14
IN THE MATTER OF: DOCKET NUMBER: 93-05944
APPLICANT COUNSEL: Ms. Kathleen J. St. John
HEARING DESIRED: Yes
___________________________________________________________________
APPLICANT REQUESTS THAT:
(By amendment) An AF Form 709, Promotion Recommendation Form (PRF),
issued prior to the convening date of the FY 1991 selection board,
be declared void; his nonselections for promotion to the grade of
brigadier general by the FY 1990 and FY 1991 selection boards be
voided and a nonprejudicial explanation for this action be placed
in his file; and, the record be corrected to show he was
recommended and selected for promotion, and promoted to the rank of
brigadier general with the appropriate date of rank.
In the alternative:
He be reconsidered for promotion by the FY 1990 Air Force Reserve
General Officer Selection Board in which any reference in the
candidates’ Forms 707A, Officer Effectiveness Reports (OERs) which
state that the candidate is in the top X% of officers (where X is a
number between one and one hundred) is deleted, with special
instructions that no candidate will be discriminated against
because of corrections to the record or due to being a navigator;
with the exception of the above the selection board’s deliberations
be governed by AFR 45-34 and the applicable provisions of DOD
Directive 1320.12; his record be compared with all the considerees
before the FY 1990 board and all candidates compete for the number
of brigadier general positions determined to have been available
prior to the commencement of the 1990 selection board; and, if he
is recommended for promotion the record be corrected to show he was
recommended, selected and promoted to brigadier general, with the
appropriate date of rank.
Also in the alternative:
He be reconsidered for promotion by the FY 1991 Air Force Reserve
General Officer Selection Board with special instructions that no
candidate will be discriminated against because of corrections to
the record or due to being a navigator; his Officer Selection Brief
(OSB) for this board be corrected to show he received an MAS+
(Exhibit EE); his record be compared with all the considerees
before the FY 1991 board; the AF Forms 709 be deleted from the
selection file of each candidate; with the exception of the above,
the criteria and instructions used by the FY 1991 Selection Board
be applied; and if he is recommended for promotion, the record be
corrected to show he was recommended, selected and promoted to
brigadier general with the appropriate date of rank;
The record be corrected to show, after fulfilling all conditions
necessary to do so, he is either retired and entitled to receive
the retirement pay of a brigadier general (or award him damages to
compensate him for lost retirement benefits); or permanently
assigned, at the option of the Air Force (Exhibit Y);
He be awarded all compensatory or other damages allowable under
Federal law, and he be awarded reasonable and necessary attorneys
fees and expenses allowable under Federal law;
He be granted any and all relief necessary to give him a “whole
loaf” of relief for all injustices suffered, and any other
additional relief to which he may be justly entitled.
All of his claims, responses, affidavits, appendices, attachments,
evidence, motions, objections and correspondence with the AFBCMR be
included and incorporated in his application to the Board; because
of the Air Force’s failure to comply with AFR 31-3, paragraph 31b,
he be granted leave to amend his prayer for relief, if amendment is
necessary, in order for him to obtain a “full loaf” of relief; any
presumption that the Air Force and the Air Force Reserve acted in
good faith in conducting the Reserve General Officer Selection
Boards in 1990 and 1991, and, in connection with this application,
be reversed.
The Board direct an investigation into the FY 1990 Air Force
Reserve General Officer Selection Board.
The Board provide access to all the Personnel/Manpower/Training
Newsletters which address any aspect of PRFs from January 1990 to
the present, as well as other Air Force records pertaining to PRFs.
___________________________________________________________________
APPLICANT CONTENDS THAT:
He was unlawfully denied promotion because the selection board was
conducted in a manner contrary to the governing law and Department
of Defense Directive.
He was the most qualified colonel to meet the FY 1991 selection
board. His record was superior to that of any other candidate from
the unit program. His nonselection was the result of an illegal
quota that excluded qualified navigators from general officer
positions.
Selections for promotion were based on favoritism, rather than on
merit, and a priority listing was used to communicate to the
selection board the preferences of commanding officers.
His assertions of improprieties in the promotion process apply to
both the FY 1990 and the FY 1991 Air Force Reserve General Officer
Selection Boards.
He was not provided a copy of his PRF prepared for consideration by
the FY 1991 board until 8 days before the selection board convened
and, therefore, he was not given the advance notice required by Air
Force regulations and was deprived of a sufficient opportunity to
challenge the propriety of the priority listing.
In support of the application, counsel provided a brief in which
she elaborates on the foregoing contentions, an affidavit by the
applicant and eleven supporting documents, including documents
pertaining to the applicant’s service and duty performance and the
PRF considered by the FY 1991 selection board. In four subsequent
submissions (including a First Supplement), counsel also provided
an affidavit by the applicant and four supportive affidavits by
former Reserve officers. Complete copies of these submissions are
at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
On 18 March 1957, the applicant enlisted in the Regular Air Force
for the purpose of enrollment in aviation cadet training. After
successfully completing training, he was awarded the aeronautical
rating of navigator and was discharged on 4 June 1958. On 5 June
1958, he was appointed a second lieutenant, Reserve of the Air
Force, and was voluntarily ordered to extended active duty. He was
integrated into the Regular Air Force on 30 April 1959. On
31 March 1965, based on his tendered resignation, he was honorably
discharged from the Regular Air Force in the temporary grade of
captain. He had served 8 years and 14 days on active duty.
On 1 April 1965, the applicant was appointed a captain, Reserve of
the Air Force. He was an active Reserve participant until his
retirement and was progressively promoted to the grade of colonel,
effective 1 June 1981. By letter dated 9 June 1987, the applicant
was authorized to continue in an active Reserve status as a
condition of his employment as a military technician beyond his
mandatory separation date until 16 March 1992. The following is a
resume of the applicant’s Officer Effectiveness/Officer Performance
Report (OER/OPR) ratings subsequent to his promotion to the grade
of colonel.
PERIOD ENDING EVALUATION OF POTENTIAL
22 May 1982 1-1-1
30 Nov 1982 1-1-1
30 Nov 1983 1-X-1
30 Nov 1984 1-1-1
30 Nov 1985 1-1-1
3 Aug 1986 1-1-1
3 Aug 1987 1-1-1
27 Aug 1988 Meets Standards (MS)
15 Aug 1989 MS
6 Aug 1990 MS
6 May 1991 MS
On 13 March 1992, the applicant requested that he be transferred to
the Retired Reserve. On 16 March 1992, he was relieved from his
Reserve assignment, assigned to the Retired Reserve, and his name
was placed on the Reserve Retired List. He was credited with 34
years, 11 months and 28 days of satisfactory Federal service. He
became eligible to receive Reserve retired pay on 16 March 1997.
___________________________________________________________________
AIR FORCE EVALUATION:
The Directorate of Personnel, Office of the Air Force Reserve, HQ
USAF/REP, reviewed this application and recommended denial. REP
stated that the FY 1991 Reserve General Officer Selection Board
operated under the provisions of AFR 36-9 and Title 10, Chapter
837, with further instructions in the form of a Memorandum of
Instructions from the Secretary of the Air Force. The two officers
of whom the applicant complains did not serve on the Board. REP
stated that the applicant’s allegation that they made promotions
based on favoritism and cronyism is unfounded. The board
membership included an active duty lieutenant general, one active
duty major general, and three Reserve major generals.
REP stated that the applicant’s PRF was used in accordance with AFR
36-9 and that there was no priority list of the generals’ personal
choices for promotion. In accordance with AFR 36-9, only those
officers who received a Definitely Promote (DP) were rank ordered.
REP indicated evidence they have provided shows the allegation
concerning the candidate described as “number three” is incorrect.
AF/DP granted this officer a waiver to meet the minimum eligibility
requirement of six months’ time in a general officer position.
REP stated that the board members selected those officers best
qualified to meet the needs of the Air Force – there was no illegal
quota that excluded qualified navigators from general officer
positions. His Promote recommendation meant that he was making a
valuable contribution to the mission and had potential for
promotion. It was not an improper negative communication.
As to the allegation that he received a copy of the PRF 8 days
before the board, REP noted that there was no postmark available to
show when the document was mailed, only the handwritten note,
“received 25 Sep 91.” REP related the stipulation in AFR 36-9 that
PRFs be provided to the ratee “approximately 30 calendar days
before the selection board meets, if practicable.” (See Exhibit C.)
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
In further support of the appeal, on 10 May 1994, counsel provided
five additional affidavits by retired Air Force Reserve officers.
On 26 May 1994, counsel submitted a Second Supplement to the
application, consisting of an amended request for relief, an
additional affidavit by the applicant, a supportive affidavit by a
retired Reserve officer, and a Motion for Investigation of the FY
1990 Air Force Reserve General Officer Selection Board. Also
provided were Appendices entitled Freedom of Information Act
(FOIA), Legislative History, and DoD and Air Force Regulations/News
Articles, which contain documents cited in the above motion and the
response to the advisory opinion.
In her motion for an investigation of the 1990 board, counsel
elaborates on her assertions that there were willful violations of
Federal law documented in Senate Report 102-54, Air Force Reserve
leadership had a history of signaling their preferences to the
selection board, and the board’s procedures violated the provisions
of the governing regulation and law. She further stated that the
Department of Defense ordered the Air Force to adopt regulations
which limited communications by senior leaders to selection boards
and which required the Secretary of the Air Force to develop
general procedures to guide the board deliberations. The Air Force
refused to follow this directive until 1991 when it adopted AFR 36-
9. As a result of the Air Force’s disobedience of the mandate of
the Department of Defense, the FY 1990 selection board was given
instructions by the active duty Air Force which were grossly
inconsistent with the standards developed by the Department of
Defense. In view of the above, counsel requests that the FY 1990
board be investigated. If the Board declines to do so, then the
Board should find that the Air Force’s refusal to promulgate
standards governing selection boards constituted a fatal error in
the proceedings and that the applicant is entitled to relief. In
the alternative, the Board should reverse the burden of proof and
require the Air Force Reserve to show that the applicant was not
harmed by any irregularities in the board’s proceedings.
In her response to the HQ USAF/REP opinion, counsel reiterated and
elaborated on her initial contentions and the arguments set forth
in her Motion for Investigation, citing the evidence provided to
date concerning the applicant’s performance as a member of and his
contributions to the Air Force Reserve. She cites a number of
circumstances and information relating to other officers considered
for promotion to support her assertions that navigators and, in
particular, her client, were treated prejudicially in the promotion
process and that his record was superior to the officers who
received the first rank-order ratings. She noted that her client
was the oldest of the three navigator candidates in 1991 and the
only candidate whose age would force him into mandatory retirement
in the event of his nonselection. It was publicly announced that
he would be retiring even before the 1991 board convened. There
was no way to predict this retirement unless senior leadership
could count on the selection board to adopt the priority rankings
on the candidates’ PRFs.
Counsel stated there was no postmark on the contested PRF because
the letter was sent in pouch mail. He immediately protested his
“Promote” rating. The Air Force Reserve does not dispute that a
general officer told him that his “being a navigator was no doubt a
factor.” Nor do they dispute that, when specifically questioned on
the matter, a second general officer stated that “we have to look
at the whole man.”
Citing various court cases, counsel stated that it is well
established that the government must follow its own regulations.
The burden for providing a showing of error or injustice rests with
the complainant. Where an officer complains that the error
resulted in a nonselection for promotion, he or she must make a
showing of a substantial connection between the error and the
nonselection. Once a connection has been demonstrated, the end-
burden of persuasion shifts to the government to prove that the
error is harmless. The evidence she has provided demonstrates that
an injustice has been committed which warrants granting the
requested relief.
Counsel stated that the evidence shows her client did not receive
his PRF 30 days in advance of the promotion board, his rating was
affected by a navigator quota, senior Reserve officers usurped the
functions of the regulatory and statutory board in violation of the
governing regulations by considering factors not related to
performance, the “Promote” recommendation her client received was
an impermissible negative comment which did not meet the
definitional requirements of AFR 36-9, and that his selection file
was not considered in a fair and equitable manner. Counsel further
reiterated and expanded on her arguments that the PRF was rendered
in violation of Federal law and DOD Directive 1320.12.
The foregoing submissions, in their entirety are at Exhibit E.
Also at Exhibit E are counsel’s letters of 10 and 21 June 1994.
___________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
Pursuant to the Board’s request (Exhibit F), HQ USAF/REP again
reviewed this application and recommended denial. REP affirmed
their earlier comments and stated that the applicant received fair
and equitable consideration for promotion. REP stated the
circumstances surrounding the applicant’s receipt of his PRF were
not in violation of AFR 36-9; there was no “navigator quota” in
effect; and no “mini-board” was conducted--his promotion
recommendation was prepared using the “whole man” concept and in
accordance with AFR 36-9. REP further stated that, while counsel
bases her argument concerning the PRF on the provisions of AFR 36-
10 and its chapter on PRFs, the regulation states that such
provisions do not apply to members of the Air National Guard and
the Air Force Reserve. Any comparison between AFR 36-10, which
does not apply to Reserve officers, and AFR 36-9, which does apply
to Reserve colonels meeting a Reserve general officer selection
board is unfounded.
REP stated that the 1991 Reserve General Officer Selection Board
members, in accordance with the Memorandum of Instructions, served
under oath and without prejudice or partiality. The applicant’s
promotion recommendation was merely that--a recommendation. While
the applicant’s arguments center around the so-called rankings of
senior Reserve officers, the final decision on the selection of
officers for promotion rests with the selection board. Neither of
the named officers were present at the selection board.
Furthermore, as pointed out in AFR 36-9, “Communications regarding
particular officers are expressly forbidden, unless unusual
circumstances exist that would preclude an officer’s performance
from being documented in the official record.” The applicant did
not fall in this category.
REP indicated that there was no “priority list” used to complete
the PRFs. In accordance with AFR 36-9, only those officers who
received a “Definitely Promote” were rank-ordered. The selection
board was instructed to weigh the selection folder under the whole
person concept. The PRFs are a part of the selection folder. REP
stated the PRFs are disposed of in accordance with AFR 36-9 and
maintained in the selection folder until the officer is promoted,
separated, or retired.
As to the applicant’s assertions concerning the FY 1990 selection
board, REP stated that they have no historical files, other than a
list of eligibles and selectees for this board. Their office does
not have administrative responsibility for the actual conduct of
the board and therefore they do not have access to material
associated with the board’s deliberations.
A complete copy of this review is at Exhibit G.
The General Law Division, HQ USAF/JAG, reviewed the application and
also recommended denial. JAG stated that the applicant’s belief
his record is superior to those of others considered by the board
is not sufficient to prove an injustice was committed. The fact
that the senior rater determined, after evaluating all the records
presented to him, the applicant’s promotion recommendation should
be “Promote,” notwithstanding his opinion of his record, does not
constitute an injustice which the Board should remedy.
JAG notes the applicant’s admission that he was orally informed the
recommendation would be a “Promote” on 26 August 1993, more than 30
days before the board met. JAG opined that even if he received the
PRF 8 days before the board met, he suffered no harm because he
already knew what the recommendation was and could take such
actions as he was authorized to deal with it at that time. In
fact, he chose not to do so until shortly before the board met. In
addition, JAG stated that in view of the language in AFR 36-9,
paragraph 20.a.4, providing the PRF to the candidate 30 days before
the board is not mandatory.
As to the allegation of navigator quotas, JAG stated that the
evidence provided is anecdotal and does not establish policy. JAG
indicated that if navigators do not do well in promotions, there
may be any number of reasons other than a conspiracy not to promote
them. JAG noted that one of the court decisions cited by the
applicant contains a point he has chosen to ignore, i.e., a rating
and promotion scheme for the Air Force is wholly within the power
and discretion of the Secretary. The senior rater exercised his
discretion and assigned a “promote” recommendation to the
applicant. There is no evidence showing that he received this
recommendation because he was a navigator. JAM noted that another
navigator was selected for promotion by the selection board in
question. The applicant argues that this individual was less
qualified than he was, however, this was not his decision to make.
The applicant has provided no support for his assertion that there
was room to promote only one navigator. In JAG’s opinion, the
applicant has not shown the required nexus between any improper
quota and his nonselection. His allegations of improprieties
conducted by others are not supported and, in any event, are not
germane to his rating.
JAG does not understand the reference to AFR 45-34 in connection
with alleged usurpation of board functions. This regulation
applies to Initial Brigadier General Screening Boards (IBGSB),
which identify the best Reserve colonels for possible assignment to
general officer slots. The applicant was selected by an IBGSB and
was serving in a general officer slot when the 1991 board convened.
JAG summarized the applicant’s arguments concerning alleged mini-
boards and stated they were unable to find any evidence to support
his conclusion that he received his promotion recommendation as a
result of the determination of a “mini-board.”
With respect to the applicant’s contentions concerning the alleged
negative connotation of a “Promote” recommendation, JAG stated a
“Definitely Promote” is not an automatic entitlement to promotion.
Moreover, a “Promote” recommendation is not the “kiss of death.”
JAG indicated that differentiating among promotion candidates is
and always has been legal. The PRF process is the latest in a long
series of procedures used to assist promotion boards in identifying
the best candidates. The use of the PRF does not usurp the power
of promotion boards. JAG stated that the applicant’s PRF was
processed in accordance with AFR 36-9. Reading the PRF as a whole,
it cannot be said to disqualify the applicant, despite his claims
to the contrary.
JAG stated that the applicant relies heavily on the legislative
history of the FY 1992 DoD Authorization Act, Public Law (P.L.) 102-
160, and noted that this statute was passed on 5 December 1991,
more than 2 months after the selection board which nonselected the
applicant had met. As to the assertions that the PRF is a priority
listing because it rank-orders the candidates, those rankings are
not merit-based, such rankings influence the selection board, and
they are secret, JAG stated that AFR 36-9 specifically requires all
PRFs with “Definitely Promote” recommendations be ranked. Because
a PRF carries a recommendation or ranking does not mean it usurps
the authority of the selection board. The PRF is a recommendation
which the board may choose to ignore. JAG does not know whether
the board selected the 13 highest ranked PRFs. No separate list
showing the ranking of each PRF is kept, nor is such a list
authorized. The use of the PRFs in a manner prescribed by AFR 36-9
is not contrary to the law as it existed at that time, or today for
that matter, nor DoD regulation. JAG stated that the PRF
procedures complied with all statutory and regulatory procedures in
effect at the time the board met.
JAG indicated there is no evidence a mini-board existed to screen
any part of the applicant’s file, other than the IBGSB, which
recommended he be placed in a general officer position. Therefore,
his argument which is a broadside attack on the promotion process
fails. Even if this argument is correct, he suffered no harm.
This evaluation is at Exhibit H.
___________________________________________________________________
APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
Copies of the additional advisory opinions were forwarded to
counsel on 17 October 1994 (Exhibit I). On 27 October 1994,
counsel submitted a Motion for Clarification concerning the meaning
of the term, “administrative relief is not possible” by HQ USAF/REP
(Exhibit J). On 28 October 1994, counsel requested that the case
be forwarded to AFDPG for review (see Exhibit K). On 4 November
1994, she provided a copy of page 33, which was missing from her
response to the initial advisory opinion (Exhibit L).
On 16 November 1994, counsel was provided a response to the above
motion and advised that her client’s case had been referred to HQ
USAF/DPG for further review (Exhibit M).
In the meantime, on 15 November 1994, counsel submitted a Third
Supplement to the application, her response to the additional
advisory opinions, an Objection to any Ex Parte communication by
the Air Force or Air Force Reserve, a FOIA Appendix (Volume 2), an
affidavit by the applicant, and a letter from a retired Reserve
general officer who had previously submitted two affidavits in
support of the appeal. A summary of the submission follows.
In her letter, counsel supplies a listing of 29 questions to assist
the Board in responding to her Motion for Investigation relating to
the 1990 board.
In her Third Supplement to the Application, counsel submitted a new
statement of relief in lieu of any previously-requested relief.
In her response to the advisory opinions, counsel again reiterated
the applicant’s contentions. She stated that she did cite both
parts of the court decision cited by JAG. The first part was the
one mentioned by JAG. The second part, ignored by JAG, was that
courts will intervene, even in rating and promotion matters, if
there is a violation of federal law or agency regulation. In this
case, her client is alleging numerous violations of law, DoD
Directive, and regulations, including, but not limited to, age
discrimination, navigator discrimination, the use of priority
lists, the use of a “Promote” recommendation to deselect a
candidate, unauthorized use of competitive categories, and usurping
functions of statutory selection boards.
Counsel believes it is unimportant whether the conduct to limit the
number of navigators in key positions to one and for only one
navigator to be selected in 1991 is labeled a “quota;” whatever the
label, the conduct was unauthorized and unlawful. The Air Force
Reserve has provided no evidence negating the existence of a policy
by senior leadership to limit navigator promotions. No one even
contacted the primary witness in the case, the general officer who
was the applicant’s evaluator on the 1990 and 1991 OPRs. This
being the case, the Board must find her assertions are correct.
Counsel indicated that, in light of REP’s admission that senior
leadership considered “whole man” considerations and in view of the
instructions on the bottom of the PRF, the wrong standard was
applied. The standard for all promotion recommendations is
performance and only performance. This entitles the applicant to a
new selection board as a matter of law. Counsel stated that, based
on the applicant’s age (54), he was the only one of the navigator
candidates whose nonselection would further the senior leadership’s
goal of reducing commander navigators. Counsel believes this fact
was paramount in the minds of senior leadership when they decided
in 1991 to give a “Definitely Promote” to another navigator.
Counsel stated that the applicant has never argued that there was a
barrier to all navigator promotions, but rather, that there was a
decision to limit the number of navigators promoted, the decision
as to who that navigator would be was made before the board, and he
was given a “Promote” recommendation to accomplish this end.
Counsel stated that JAG appears to be operating under the
misapprehension that senior leadership was entitled to limit
navigator promotions in 1991. No competitive categories were
authorized in 1991. Thus, rating the applicant as a navigator not
only violated the instructions on the PRF but also did not have the
authorization of Congress, the Department of Defense, and the
Secretary of the Air Force, who alone have the power to create
competitive categories.
Counsel does not believe the Board should disregard the statements
by the Senate Armed Services Committee because they relate to a
statute passed after 1991. Congress has never authorized priority
rankings by senior leadership. Counsel believes that, for this
reason, the Senate’s 1991 report is relevant, not only to
regulations passed under the 1992 DoD Authorization Act, but also
regulations like AFR 36-9, which were passed in 1991. Counsel
noted that the governing DoD Directive in effect in 1991 disallowed
all communications by senior leadership unless they relate to
matters that could not be placed in the board. The DoD Directive
was amended in 1992 to disallow only “unauthorized” communications.
This is why, prior to the amendment to the DoD Directive, AFR 36-9
was illegal.
Counsel asserted that when the two officers in senior leadership
usurped the functions of the statutory selection board, they did
operate as a “mini-board.”
Counsel stated she has provided a chart showing the similarities
between PRFs and other evaluation procedures. This chart shows
that the PRF is almost identical to the illegal priority lists used
by the Air Force prior to 1991 and is different from traditional
promotion recommendation forms.
Counsel stated that, prior to 1991, AFR 36-10 governed both Reserve
and active duty general officer promotions. Today, AFR 36-10
governs officer performance reporting for all Air Force officers.
Counsel believes AFR 36-10 is relevant for the additional reason
that it represents the accumulated wisdom about the behavior of
selection boards. Because it was discovered that the use of PRFs
for Reserve officers resulted in an imbalance between full-time and
part-time selectees, the Air Force Reserve discontinued their use.
Fairness and impartiality are required by federal law for all
boards and it would seem the impartiality of the general officer
boards are even more crucial.
While it may be true that there are numerous active duty field
grade officer candidates who have been selected with a “Promote”
recommendation, active duty general officer candidates have not
been so fortunate. She was informed by a knowledgeable individual
that there is a complete correspondence between the numbers
assigned on PRFs and reserve general officer board recommendations
for every board since 1991 and that the correlation between the
numbers and board outcomes for active duty general officer
candidates is almost 100%. The evidence she has provided supports
this information. She believes that the Board should require the
Air Force to supply information regarding how many “Promote”
general officer candidates were selected from 1991 to 1993 in both
active duty and reserve and to show how many “Definitely Promotes”
were assigned within each command for each active duty and reserve
board. This would prove conclusively that when the number of
“Definitely Promote” recommendations exceeds the number of general
officer vacancies, a “Promote” recommendation is the “kiss of
death,” not the required positive recommendation. Even though the
comments in his PRF were “glowing,” by contrast, the “Promote”
recommendation he received was the lowest in the entire unit
program. The comments do not erase the injustice of the rating her
client received.
Contrary to the Air Force’s statements, the selection boards were
not free to disregard the “Promote” recommendation. They are
required to factor it into the scoring. Counsel stated that the
applicant only needs to establish the existence of an error or an
injustice and make a prima facie showing of a causal nexus. Since
the Air Force has custody of the other candidates’ records, the Air
Force has the burden for providing evidence establishing his record
was inferior to other candidates.
Since the applicant was informed of the promotion recommendation
orally as early as 26 August 1991, counsel asserts it was
practicable to send the applicant his PRF on 3 September 1991.
Therefore, the Air Force cannot now argue that 8 days were
sufficient. Counsel stated that the applicant was precluded from
communicating with the 1991 board by law and regulation. His only
recourse was to persuade senior Air Force Reserve management that
what they were doing was unlawful. Had he had the 30-day notice
required by the regulation, he would have had time to obtain a
legal opinion that his navigator status could not be a factor in
his rating to prevent the injustice.
Counsel stated that, while the Air Force may have “disposed of” the
applicant’s PRF when he retired in March 1992, they did not destroy
it. Counsel stated that the Board should request and review the
PRFs for all candidates recommended for selection by the 1991 to
1993 Reserve General Officer Selection Boards. She believes these
documents would prove that AFR 36-9 is illegal and used by the Air
Force for the illegal purpose of unduly influencing board outcomes.
The missing page of her brief demonstrates that the applicant has
met the burden for showing causal nexus. The Air Force has not met
its burden of showing that its injustices and errors were harmless.
In her Motion to Admit Advisory Opinions as Adversarial Replies,
counsel contended that the advisory opinions provided for the
Board’s review were not prepared in accordance with AFR 31-3,
paragraph 31(b), HQ USAF/JAG has not provided impartial legal
advice, and the advisory opinions filed in the case do not meet the
minimal standards of fairness and impartiality.
In her Objection to any Ex Parte Communication by the Air Force or
Air Force Reserve, counsel stated it would not be consistent with
constitutional principles of due process for the Board to seek
advice or information from the Air Force or Air Force Reserve
without providing the applicant the opportunity for rebuttal.
The above-cited documents in their entirety, with all attachments,
are at Exhibit N. Also at Exhibit N is a copy of counsel’s letters
to AFLSA/JACL, counsel’s comments concerning the response to her
Motion for Clarification, a letter reiterating her request that an
additional investigation be conducted by an independent body
(perhaps OSD), and counsel’s letters containing additional
observations concerning FOIA responses she received.
In a letter dated 31 January 1995, counsel requested the status of
her motion for an investigation. She also raised the following
additional issues in support of the application.
Counsel stated that the 1990 selection board did not determine by a
majority of the total membership to recommend individual candidates
or a slate of candidates, as required by 10 USC 8362(e); the
members of the board did not determine which candidates were “best
qualified,” “fully qualified” and “not fully qualified,” as
required by AFR 45-34; and, the regulations adopted by the
Secretary and used by the 1990 board were not “equitable” as
required by 10 USC 1001(a)(2) in that they permitted communications
from the senior leadership regarding their personal preferences for
promotion. Counsel observes that this latter issue also violates
10 USC 8362(d), which requires that selection board members act
without prejudice or partiality. Counsel further alleged that the
Air Force willfully destroyed the closed AF Form 706 in the
applicant’s file in order to limit his rights on appeal, in
violation of 44 USC 3101 and his right to due process. In view of
this destruction, the Air Force has a duty to make full and fair
disclosure regarding the procedures followed by the 1990 board.
The Air Force refused to divulge its scoring procedures under the
FOIA. The fact that the board members were required to swear that
they would not disclose information regarding the board’s
procedures and the lack of clarifying instructions has greatly
impeded the applicant’s quest for written statements from the board
members. Counsel’s letter and a response is at Exhibit O.
On 29 April 1995, counsel submitted a Fourth Supplement to the
application, two additional affidavits in support of the appeal, an
Alternative Motion concerning the advisory opinions, a
Supplementary Objection to Ex Parte Communications and a Motion to
Have Communications Reduced to Writing and Included in the
Appellate Record, and a FOIA Appendix (Volume 3). A summary of the
contents of the Fourth Supplement and counsel’s motions and
objection follow.
In her Fourth Supplement, counsel stated the Air Force’s
destruction of the applicant’s AF Form 706, their failure to
maintain records pertaining to promotion patterns for navigators,
and the failure to maintain records of the mail-date of his PRF
violated 44 USC 3101 and vitiates against any presumption of good
faith that may otherwise have attached to the proceedings of the
1990 board. In 1991 and 1992, the Senate Armed Services Committee
publicly announced that the Air Force had discontinued its use of
closed forms. It was generally assumed that this referred to AF
Forms 709 and 78. However, in late 1991, the Secretary, in an
unpublished directive, defined Promotion Recommendation Forms as
including AF Form 706, a closed form. The Air Force has the
ability through tilt models to isolate factors such as candidates’
status as a navigator and to determine whether navigator status
affects promotion opportunity. The Air Force has the ability to
determine how many Reserve navigators were forced to turn down
promotions to colonel because of a lack of a colonel position while
colonel positions were being assigned to lieutenant colonel pilots
and the ability to determine how many navigators in proportion to
their total numbers are placed in command and other key positions.
Counsel stated that the version of AFR 36-9 in effect when the
applicant met the selection board in 1991 never received DoD
approval, which appears not to have been required in 1991.
Statements made by senior Air Force leadership in filings made in
civil court show that the Air Force was aware of problems with the
promotion system and the effects of assigning a “Promote”
recommendation to the applicant. Evidence obtained under the FOIA
shows that the number of active duty and Reserve colonels promoted
to brigadier general with “Promote” recommendations is zero.
Copies of the PRFs are retained for all field grade officers. If
they are destroyed for general officer selection boards, the Board
should infer an intent to obstruct judicial review. If these
documents have not been destroyed, bad faith may yet be inferred
since the Air Force has provided information to the contrary.
Counsel expanded on her assertions related to the applicant’s
promotion consideration and questioned the fairness and accuracy of
the Air Force evaluations.
In her Alternative Motion relating to the advisory opinions,
counsel stated that in the event that the Board accepts the Air
Force papers as “advisory opinions” and accords them more weight
than is appropriate for adversarial argumentation, the applicant
objects to such action as contrary to law and due process.
A complete copy of counsel’s submission, with all attachments, is
at Exhibit P.
___________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
On 25 October 1995, a request for additional advisory opinions was
forwarded to HQ USAF/REP, HQ USAF/DPG and HQ USAF/JAG (Exhibit Q).
The Air Force General Officer Matters Office (AFGOMO) reviewed the
applicant’s allegations concerning the conduct of the board and the
promotion process and stated that none of the allegations were
substantiated as a violation of policy, directive or statute and,
therefore, they do not support the relief requested. In Case File
Summaries, AFGOMO provides their analyses of the specific
contentions made by the applicant and counsel which they stated
fall under their purview. This document, in its entirety, is at
Exhibit R.
HQ USAF/REP again reviewed this application and stated that they
continue to support their position that the applicant received fair
and equitable treatment in meeting the subject promotion boards,
and that these boards were conducted in accordance with regulations
in effect at that time. This evaluation is at Exhibit S.
HQ USAF/JAG, again reviewed the application and recommended denial.
JAG reiterated many of the observations set forth in their initial
opinion and stated that much of the material submitted in
connection with the third and fourth supplemental applications
provide little or no new material. The following is a summary of
their discussion.
JAG disagrees with the assertion that the previous advisories
failed to comply with AFR 31-3 and that the organizations providing
the advisories were not permitted to express their opinions
regarding the merits of the case. JAG stated that while the
applicant presents anecdotal evidence that senior management
disfavored navigators, he is unable to present any evidence that a
quota actually existed or that he failed to be promoted because of
a quota. The applicant’s status as a navigator could properly be
considered under the governing regulation when preparing his PRF.
With respect to the argument that DoD Directive 1320.12 in effect
in 1991 prohibited all communications with the promotion board by
senior leadership, JAG indicated that the applicant has misread the
operative paragraph of this instruction, which required all
communications intended to express the views of the Secretary,
senior military members or other superior authority to the
promotion board to be in writing and furnished to the officer. JAG
opined that the PRF meets this requirement and that it constituted
a legal, authorized communication. In addition, without evidence
demonstrating consideration of factors not allowed by the
applicable regulation, the contention that senior Reserve
management usurped the functions of the selection board is, in
JAG’s opinion, without merit.
JAG stated that while AFR 36-10 governed, among other things, PRFs,
and applies to the preparation of evaluations and, prior to April
1991, AF Forms 706, AFR 36-10 does not govern the promotion
process. That matter is addressed in AFR 36-9. JAG indicated
that, when promotion to brigadier general is at issue, the PRF is
covered by AFR 36-9, not AFR 36-10. Since the applicant has not
alleged any irregularity concerning preparation of any AF Form 706,
alleged violations of AFR 36-10 are not germane. JAG noted that
the applicant’s AF Forms 706 were destroyed pursuant to an order
from the Secretary of the Air Force in March 1993, well before the
applicant filed his application or FOIA request.
JAG indicated the fact that there is no quota on the number of
“Definitely Promote” recommendations does not alter the meaning of
the “Promote” recommendation.
For reasons which JAG has been unable to ascertain, the applicant’s
PRF was not destroyed as it should have been. They stated,
however, the PRFs of the other officers who met the 1990 and 1991
promotion boards were properly destroyed. The fact that his PRF
has not been destroyed has worked no prejudice to him. JAG stated
that PRFs prepared on other officers after 1991 are not relevant to
this application because the applicant was not considered for
promotion after 1991.
JAG indicated that 44 USC 3101 does not require the retention of
every piece of paper ever generated by an executive agency. It
requires agencies to make and preserve records pertaining to the
organization, functions, policies, decisions, procedures and
essential transactions of the agency in order to protect the legal
and financial rights of the Government and persons affected by
agency activities. PRFs do not fit this definition. A record of
the promotion board’s deliberations must be retained. After a
discussion of the pertinent instructions pertaining to the
disposition of AF Forms 706 as they apply to this case, JAG stated
that there was no bad faith by the Air Force in performing what was
a routine administrative function.
JAG stated that the applicant provided no basis for the assumption
that the reference in AFR 36-9 to inclusion of promotion
recommendation forms in the selection record applied only to the AF
Forms 709 and 78. The AF Form 706 was clearly labeled as a
“Colonel Promotion Recommendation Report.” IMC 91-1 to which the
applicant refers clarified this matter by specifically identifying
the promotion recommendation forms by their number, rather than
stating that the record would include officer promotion
recommendation forms. This message was issued and effective on
dates after the applicant’s promotion consideration. The
clarification to identify promotion recommendation forms is not
substantive in nature and the applicant has not explained how this
clarification worked to his prejudice.
JAG stated that they are unaware of anything called a “tilt model”
or of models which track the chances of an individual being
promoted to a given grade.
JAG stated that the applicant has provided no evidence to support
the assertion that the number of “Definitely Promote”
recommendations exceeded the number of general officer positions
available. Even if this did occur, it does not violate any law or
regulation since the promotion board is not bound by what a PRF
says. The Memorandum of Instruction to the board members is silent
regarding navigators versus any other career field. The applicant
has provided no evidence that the boards he met considered any one
factor as the sole determinant for selection (see Exhibit T).
Copies of the additional advisory opinions were forwarded to
counsel on 9 February 1996 (Exhibit U). Pursuant to a letter from
counsel, instructions for corrective actions were requested from
the appropriate Air Force offices (Exhibit V).
In response to the above, AFGOMO, HQ USAF/REP and HQ USAF/JAG
stated that, should the Board act favorably on the applicant’s
appeal, the Board should direct that he be considered for promotion
to the grade of brigadier general by a Special Selection Board
(SSB) (see Exhibit W). These documents were forwarded to counsel
on 1 April 1996 (Exhibit X).
___________________________________________________________________
APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:
On 6 April 1996, the applicant submitted a Fifth Supplemental
Application, a Brief and Response to the Advisory Opinions with
Exhibits 1 through 30, FOIA Volumes (4, 5, and 6), Regulations and
Publications Volumes (2 and 3), a volume entitled “Documents
Released to Other Requesters but not to (The Applicant),” and a
letter to the Board enclosing two FOIA documents. A summary of the
contents of this submission is set forth in the following
paragraphs.
Since the applicant’s use of the term “quota” in connection with
the selection of navigators for promotion has generated excessive
argumentation based on semantics, in clarification, the applicant’s
assertion is that there was an unlawful course of conduct in the
Air Force Reserve in 1991 to limit the number of AFRES Unit Program
navigator general officers selected in 1991 to one and the PRFs
were used within the AFRES Unit Program to further this course of
conduct. As a result, improper factors were introduced into the
rating process.
AFR 36-9 requires that PRFs be maintained in a Military Personnel
Records System. The Privacy Act Notice for the Military Personnel
Records System is contained at F035 AF MP C. This system of
records contained performance/effectiveness reports and contains no
mention of assessments of promotion potential based on
nonperformance standards. By using the “whole man” standard, the
Air Force used PRFs without properly noticing the form in its
system of records, in violation of 44 USC 1505 and 5 USC 502 et
seq. If PRFs were not included in the Officer Selection Record
Group, the Air Force had no authority to use the form under AFR 36-
9, paragraph 10d. If the Air Force did not include AF Forms 706 in
the Officer Selection Record, it had no authority under AFR 39-10,
paragraph 8-14 and AFR 36-9, paragraph 10d (as clarified by IMC 91-
1) to use this form in the 1990 and 1991 selection boards.
Counsel asserted that promotion recommendations based on all of the
factors communicated to the selection boards constitute an unlawful
intrusion into the exclusive statutory domain of selection boards.
Factoring into the scoring a senior rater’s assessments of who
should be promoted based on all aspects of a candidate’s 25 or 35-
year record introduced an improper factor into the selection board
process. Using the AF Forms 709 turns the senior raters into the
commanding officers of the selection board members.
Counsel stated that the Air Force has been less than candid with
the Board about the intended effect of a PRF. Since the
applicant’s FOIA requests are being screened by the individuals
withholding information from the Board, the applicant requests that
the Board provide him access to all the Personnel/Manpower/Training
Newsletters which address any aspect of PRFs from January 1990 to
the present, as well as other Air Force records pertaining to PRFs.
If the Board refuses this request, the applicant will request a
court order for the production of the documents. Apart from a
directed finding in the applicant’s favor, discovery of Air Force
records is the only conceivable remedy for the Air Force’s failure
to provide advisory opinions in keeping with its duty. She has
provided documents showing the Air Force had altered at least one
crucial document before releasing it under FOIA and the applicant
has reason to believe that others have been altered as well.
In her Brief and Response to the additional Air Force evaluations,
counsel stated that, contrary to the Air Force’s assertions, there
is ample evidence in the record in the form of witness statements
that two senior Air Force officers engaged in a course of conduct
to limit the number of navigator general officer promotions to one.
Counsel reiterated her assertions and summarized the evidence
provided pertaining to the events leading to the establishment of
policy by senior rated Air Force Reserve officers to, among other
things, reduce the number of navigators in key positions in the Air
Force Reserve Unit Program; the qualifications and accomplishments
of her client; and the events surrounding his considerations for
promotion by the FY 1990 and FY 1991 selection boards. Counsel
stated that the Air Staff has provided no evidence contesting the
applicant’s assertions concerning these matters.
Even under the “whole man” standard, which he maintains was
improper, the type of aeronautical rating the applicant held and
the leadership’s perceptions concerning the numbers of officers in
leadership positions who also held the same rating would be invalid
considerations. By using the promotion recommendation process to
affect the number of navigator promotions, senior leadership was
interfering with the exclusive authority of Congress to authorize
competitive categories and skill guidance. In 1990 and 1991, only
the selection board had arguable authority under federal statute to
balance the future needs of the Air Force for navigators against
the quality of the candidates’ records in making promotion
recommendation decisions. By using the PRF process to limit the
promotions of officers with certain skills, senior leadership
overstepped the bounds of their lawful authority. When the
administrative record is supplemented to reflect the illegal
destruction of the AF Forms 709 used to predetermine board outcomes
for Unit Program candidates, the evidence will be even stronger.
The Air Force has been unable to provide evidence which refutes the
assertion that there is a causal nexus between a “Promote”
recommendation and nonselection for promotion. She has provided
evidence to support this assertion.
Noting the differences between the arguments by herself and AF/JAG
concerning the use of the “whole man” standard when completing
PRFs, counsel stated that the regulation cited by the Air Force
does not establish the standard used to fill out PRFs (nor does it
countermand the instructions on the PRF). It is just a list of the
communications that may be made to selection boards. There is
nothing in AFR 36-9 suggesting that raters should disregard the
instructions on the form. The instructions are completely
consistent with Air Force practices and customs in effect at the
time the regulation was implemented. Under AFR 36-20 which
governed general officer promotions until 1991, the “performance”
standard, not the “whole man” concept, was used for all general
officer evaluation and promotion recommendations. Because AFR 36-9
adopted the PRF, absent explicit direction countermanding the
instructions on the form, there was no basis to depart from those
instructions.
Another reason it would be improper for heads of management levels
to base their promotion recommendations on all of the information
made available to selection board is that selection boards are
entrusted by statute to make “promotion recommendations” based on
the information in the selection records. For commanders to
fulfill this board function constitutes an unlawful encroachment on
the authority of the selection board.
The Air Force has refused to put into evidence any information
which would show that the applicant’s record was inferior to
records of other candidates or addressing his assertion that he was
rated last in the entire unit program.
As to the meaning of the “Promote” counsel stated that, according
to AFGOMO, “Promote” means “candidate has the potential for
promotion to general officer but was not ready for immediate
promotion.” In other words, promote means “Do Not Promote This
Board.” Counsel analyzed the differences in the definitions of the
promotion recommendations as set forth in AFR 36-10 and AFR 36-9.
Counsel reasserts that by giving the applicant a “Promote”
recommendation, the leadership was signaling to the promotion board
that the applicant was not ready for promotion to the job he was
actually performing longer and better than any other unit program
candidate who was promoted. In view of the quality of his record,
the selection board was left to wonder what wart would cause the
applicant to be singled out from all other candidates in the unit
program with a recommendation indicating that he was not ready to
be a general. The definition of “Promote” provided by AFGOMO
reveals the reason that no officer with such a promotion
recommendation has ever been selected for promotion and why the Air
Force Reserve had to destroy the evidence substantiating this fact.
The Air Force has asserted that the applicant should not have
expected to be promoted because of the extremely competitive nature
of the process. Counsel stated that because of the prescreening
procedures and eligibility criteria unique to the Reserves, such
generalized references to the promotion opportunities for colonels
are irrelevant to this case. Unlike Regular colonels, whose
opportunities for promotion can be bleak, any Reserve officer in a
unit program who was prescreened and placed in a general officer
position could expect to be selected for promotion before his
mandatory retirement date. In the 10-year period from 1985 to
1994, the applicant was one of only two general officer candidates
from the unit program who was retired without being promoted.
Except for the applicant, the selection rate for Reserve brigadier
general officer candidates in the unit program was approximately
98%, with the vast majority being selected in the first two years
they were considered. In the IMA program consisting of part-time
reservists, only about 20% are retired as colonels. Thus, because
of procedures unique to the Reserve system, the Air Force Reserve
General Officer Selection Board recommended promotion for almost
all brigadier general officer candidates who met it.
Counsel reiterated and elaborated on her assertions that the Air
Force has illegally destroyed promotion recommendation forms in
order to thwart officers from exercising their rights under the
Privacy Act. In addition, counsel stated that the Air Force should
explain the reason they destroyed the applicant’s selection briefs
and biographical summaries without sending him copies as required
by law when these too are needed in this appeal and in the event he
is granted a new selection board.
Counsel noted JAG’s statement that they do not know what a tilt
model is. Counsel stated that in 1992, during the pendency of an
appeal to the Board alleging that the POM (Projected Order of
Merit) was secretly used by selection board presidents to make
selection board outcomes conform to a predetermined list of
selectees, the Air Force destroyed the POM and all the operating
procedures used in connection with it. She has provided evidence
pertaining to the foregoing and Air Force records discussing the
POM. The Air Force has not yet been able to provide either the
official Secretarial authorization for the POM’s use in selection
boards or the appropriate document authorizing its destruction.
Counsel stated that the applicant is entitled to the “supporting
evidence” for the assertion that numerous challenges to the
legality of the PRF have failed to show that it is unfair and/or
partial. The applicant is not aware of a single unsuccessful
challenge pertaining to the PRF prescribed by AFR 36-9.
Counsel stated that, contrary to the Air Force’s position in this
matter, Federal statute and Air Force regulation explicitly
prohibited the applicant from initiating any contact with the
selection board president regarding improper “conduct” or “motives”
of his raters. In addition, the Air Force has misplaced the burden
of proof to show that the applicant was harmed by late notice. The
late notice, without any showing that a timely notice was
practicable, was an error that deprived the applicant of the
opportunity to confront his raters about the anomalous rating and
to convince them that the “Promote” rating was improper and
illegal. There is a causal nexus as a matter of law between
defective notice and the harm of not being able to seek redress.
Contrary to the Air Force’s assertion, the senior rater was not
free to revise the applicant’s PRF two days before the selection
board met in the same manner as if he had given timely notice to
the applicant of his PRF approximately 30 days before the board
met. The error was therefore not harmless.
AFGOMO claims no knowledge of notes being attached to AF Forms 706
as described in an affidavit provided for the Board’s review.
Ignorance of procedures does not mean the procedure does not exist.
It means that it is kept secret. Information the applicant has
provided in the form of news articles and affidavits reflects a
crisis of leadership and integrity and corroborate his claims that
there is a systemic disrespect for laws, directives, and
regulations in the Air Force and Air Force Reserve and supports the
argument that the Air Force has, among other things, compromised
the integrity of his general officer selection boards.
The Air Force now maintains that the use of “priority lists” were
discontinued in August 1990 and not used by the 1990 Air Force
Reserve selection board. This contradicts information provided in
response to a FOIA request to the effect that the Air Force could
not identify any records regarding priority lists in 1990. In
addition, it makes no sense that the Air Force used priority lists
up through 1989, and again in 1991 on AF Forms 709, and made no
attempt to communicate the senior leader’s priority rankings in
1990-—especially in light of information he provided showing that
AFRES priority lists were orchestrated by code phrases placed by
numbered Air Force commanders in the OERs stating that an officer
was in the top X% of all officers.
The Air Force illegally ignored an express 1989 amendment to DOD
Directive 1320.12, which prohibited communications regarding
individual officer candidates except under unusual circumstances
when an officer’s performance could not otherwise be documented.
With respect to the confidence expressed by the Air Force that AFR
36-9 was approved for use, counsel stated that no supporting
documents have been supplied by the Air Force to support their
analysis. It is the applicant’s assertion that DOD could not
coordinate with the Air Force or approve AFR 36-9 in 1991 because
the draft violated the provision of DOD Directive 1320.12 discussed
above. It was only after this provision was dropped that the Air
Force could secure approval.
It is the Air Force’s position that the selection board members
acted independently and without prejudice or impartiality,
notwithstanding the senior commanders’ view concerning the priority
rankings. Available evidence indicates that the selection boards
spent approximately 98 seconds reviewing each record, and were
given the priority lists and 45 seconds to “rack and stack” each
record. This shows that the selection board was expected to rely
upon summary input to the Board which could be examined and scored
at a glance. The key item of this input was the commanders’
priority lists. Furthermore, counsel asserts that the selection
board was given “secret” instructions. The final category of
evidence relevant to the independence of the selection boards
includes the priority lists, AF Forms 706 and PRFs. The Air Force
has, without lawful authority, destroyed the priority lists so they
cannot be compared with the board results to determine their
impact. In addition, the boards were strongly influenced by
selecting only those candidates who received a “Definitely Promote”
recommendation. The AF Forms 706, in which commanders told the
selection board whether to select a candidate or not have also
disappeared, having been hurriedly destroyed by order of the
Secretary of the Air Force. Based on the evidence provided counsel
does not believe there is any basis to indulge the Air Force with a
presumption that selection boards operate independently.
The 1990 selection board members did not see the selection list and
could not have made the majority certification and recommendation
required by AFR 45-34, 10 USC 8362(e), and 10 USC 8373(c). The
only evidence that the 1990 board actually certified a list of
candidates as “best qualified” is the board report. But, the board
reports are frauds which misrepresent the certification process.
Board members signed a signature page without seeing the select
list. It is likely that even the selection board president played
no part in the formulation of the ultimate list attached to the
report because in a 1991 DOD investigation, at least one selection
board president expressed concern that the selection list did not
conform to the selection board proceedings. After the selection
board retires, the board scores are destroyed. This destruction
makes it impossible for civilians in positions of oversight to
confirm that the select list reflected the board’s proceedings and
whether the cumulative scores reflected a majority consensus
regarding who was “best qualified.”
AFGOMO stated that because the selection board found two candidates
were “Not Fully Qualified,” this shows the selection board made the
required recommendation. AFGOMO has failed to disclose that prior
to the 1990 board, the Air Force Reserve devised a plan to have
Reserve general officers found “Not Fully Qualified” if they did
not resign to make room for younger officers. This strategy had
not been used since 1980. The fact that the 1990 selection board
report reflected two officers were found “Not Fully Qualified” for
the first time in 10 years after the Air Force Reserve concocted a
plan to manipulate the promotion findings does not inspire
confidence in the integrity of the 1990 board.
If the Board grants an SSB, he requests he be provided copies of
all of the records in his selection folder in advance to correct
any errors or omissions and to make any objections he sees fit to
make, and that his candidacy be evaluated on a “fully qualified”
basis. There is no way for the usual SSB process to work in this
case. If the SSB is not granted on a “fully qualified” basis, then
the applicant requests that the Board directly promote him to
brigadier general and that, after fulfilling the necessary
requirements, he be retired or permanently assigned.
This complete submission by counsel elaborating on the above and
including the applicant’s 4th Supplemental Affidavit, supportive
statements and affidavits, and documents and newspaper articles
associated with the issues discussed by counsel are at Exhibit Y.
Also at Exhibit Y is counsel’s letter, dated 5 April 1996, in which
she provided her FOIA request of 4 May 1994 and the response
thereto, dated 28 October 1994.
At Exhibit Z is counsel’s Motion requesting that the advisory
opinions be given no weight in this case and that they be judged by
the same standard that applies to any party who supplies naked
statements of opinion. In the alternative, the applicant requests
the right to cross-examine the drafters of the opinions and others
with knowledge of the relevant facts. At a minimum, without
waiving any other requests, counsel requests the Board specify the
degree of weight accorded to the advisory opinions and articulate
the standards which advisory opinions must meet in order to be
accorded such weight.
Exhibit AA contains correspondence from counsel with Air Force
authorities concerning her FOIA requests, dated 22 and 26 May 1996.
Counsel also provided an additional volume of FOIA documents
(Exhibit BB) and requested that the Board request documentation of
the Secretary’s appointment of the members of the 1990 selection
board and/or written authorization of the Secretary to a third
party to make such appointments pursuant to 10 USC 8362(a). If no
such documentation exists, counsel asserts the applicant is
entitled to promotion reconsideration as a matter of law.
On 12 June 1996, counsel provided a substitute page 44 to counsel’s
response to the advisory opinions, which is at Exhibit Y. This
submission is at Exhibit CC.
At Exhibit DD are copies of correspondence associated with a FOIA
request submitted by counsel.
In a final submission counsel indicated that, in view of the
passage of the Reserve Officers Personnel Management Act (ROPMA),
any reference to SRBs should be read as a request for SSBs.
Counsel also requests that the applicant’s 1991 OSB be corrected to
show he received a MAS+. Counsel asserted that the Air Force has
applied more stringent standards in his case with respect to his
request for promotion reconsideration. This submission with
attachments, including a FOIA Volume 7, is at Exhibit EE.
___________________________________________________________________
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. The
applicant is asserting that the boards which considered him for
promotion to the grade of brigadier general and the PRFs presented
to those boards were conducted and prepared in a manner contrary to
various laws, DOD directives, and Air Force regulations and
policies. In addition, he alleges that his nonselections were the
result of favoritism, age discrimination and discrimination against
navigators, that his record was superior in quality to those of
other officers considered by the contested selection boards, and
that his OSB considered by the FY 1991 board contained an omission.
After reviewing all the evidence provided by the applicant and his
counsel, we do not believe approval of the requested relief is
appropriate based on the following discussion.
a. The applicant contends that the proceedings of the
contested selection boards were improperly influenced by senior
officers who were not members of the boards. However, while we
concede that information to support this allegation would be
difficult to obtain, we are constrained to note that this Board has
always operated under the principle that regularity is presumed in
the conduct of actions by Air Force officials and that the burden
for providing a showing of error or injustice rests with the party
making such claims -- the applicant. We have noted counsel’s
requests that we direct or conduct investigations of various
matters and that this Board obtain certain evidence. However, it
has been long-established that the Board is not an investigative
body; i.e., that we do not act as an advocate either for the Air
Force or the applicant, but rather, that we consider the evidence
placed before us in reaching our final determination.
Notwithstanding counsel’s entreaty that we evaluate this case
applying different standards and that we summarily reject the
information contained in the advisory opinions, in our opinion,
there is nothing in the evidence before us which would provide an
appropriate justification in this case to deviate from the routine
practices for and principles we apply to the consideration of
applications presented to us.
b. The applicant’s contentions concerning alleged
improprieties in the Air Force Reserve general officer promotion
process and, in particular, his considerations have undergone
extensive reviews by the appropriate Air Force offices of
responsibility. We have seen no evidence which would lead us to
disagree with their assessments of the case and are unpersuaded
that the contested selection boards did not exercise their own
independent judgment in selecting those officers they considered
the best qualified for promotion to brigadier general. We
specifically agree with and adopt the rationale provided by AFGOMO
and USAF/REP at Exhibits R and S, respectively, as a basis for our
conclusion that the applicant has failed to sustain his burden of
establishing the existence of an error or an injustice with respect
to the preparation of his PRFs or the selection boards in question.
c. As a final matter, the applicant believes he is entitled
to consideration by an SRB by the FY 1991 Air Force Reserve General
Officer Selection Board based on the absence of a “+” addition to
his education level (MAS) on his OSB prepared by that board. It
appears that the applicant believes an earlier decision by the
Board to afford reconsideration of a captain for promotion to major
on the basis of such an omission on an OSB requires a similar
finding in his case. We do not necessarily agree that such action
is warranted in every similar case. Since the circumstances of
cases presented to us are seldom identical, we have always stated
we are not bound by precedent. Rather, we evaluate the merits of
each individual case to determine whether the applicant has been
the victim of an error or injustice. In the case cited by the
applicant, the consideree was a junior officer with substantially
less information available on which a selection board could base
its decision. Therefore, the matter of the level of civilian
education could have a much greater impact on the perception of the
board members considering the record. On the other hand, this
applicant was a senior officer with an extensive record of
performance history available for the FY 1991 board’s review. In
view of this fact, it is our opinion that the absence of the “+”
from the applicant’s OSB did not cause his record to be so
erroneous or misleading that the duly constituted selection board
was unable to make a reasonable determination in his case or cause
him to be severely disadvantaged in comparison to his peers.
d. Accordingly, this application is not favorably
considered.
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 issues 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 9 June 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 A. DD Form 149, dated 27 September 1993, with
attachments.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ USAF/REP, dated 3 November 1993, with
attachments.
Exhibit D. Letter, AFBCMR, dated 5 January 1994.
Exhibit E. Counsel’s Letters, dated 10 May 1994, 26 May
1994, 10 June 1994 and 21 June 1994, with
attachments.
Exhibit F. Letter and Memorandum, AFBCMR, dated 28 June
1994.
Exhibit G. Letter, HQ USAF/REP, dated 22 July 1994, with
attachments.
Exhibit H. HQ USAF/JAG, dated 8 September 1994.
Exhibit I. Letter, AFBCMR, dated 17 October 1994.
Exhibit J. Counsel’s Letter, dated 27 October 1994, with
attachment.
Exhibit K. Counsel’s Letter, dated 28 October 1994.
Exhibit L. Counsel’s Letter, dated 4 November 1994, with
attachment.
Exhibit M. Letter and Memorandum, AFBCMR, dated 16 November
1994.
Exhibit N. Counsel’s Letters, dated 15 November 1994,
28 October 1994, 16 November 1994, 21 November
1994, 6 December 1994, 24 January 1995, 25 January
1995, and 27 January 1995, with attachments.
Exhibit O. Counsel’s Letter, dated 31 January 1995 and
AFBCMR
Letter, dated 15 March 1995.
Exhibit P. Counsel’s Letter, dated 29 April 1995, with
attachments.
Exhibit Q. Letter, AFBCMR, dtd 25 October 1995.
Exhibit R. Letter, AFGOMO, dated 30 January 1996, with
attachments.
Exhibit S. Letter, HQ USAF/REP, dated 1 February 1996, with
attachment.
Exhibit T. Letter, HQ USAF/JAG, dated 6 February 1996.
Exhibit U. Letter, AFBCMR, dated 9 February 1996.
Exhibit V. Counsel’s letter, dated 16 February 1996 and
AFBCMR
Letter and Memorandum, dated 1 March 1996.
Exhibit W. Letters, AFGOMO, dated 13 March 1996, HQ
USAF/REP,
dated 14 March 1996, and HQ USAF/JAG, dated
28 March 1996.
Exhibit X. Letter, AFBCMR, dated 1 April 1996.
Exhibit Y. Counsel’s Letters, dated 6 April 1996 and 5 April
1996, with attachments.
Exhibit Z. Counsel’s Letter, dated 8 April 1996, with
attachment.
Exhibit AA. Counsel’s Letters, dated 22 May 1996 and 26 May
1996, with attachments.
Exhibit BB. Counsel’s Letter, dated 6 June 1996, with
attachments.
Exhibit CC. Counsel’s Letter, dated 12 June 1996, with
attachment.
Exhibit DD. Counsel’s letter, dated 31 December 1997, with
attachments.
Exhibit EE. Counsel’s Letter, dated 11 August 1998, with
attachments.
BARBARA A. WESTGATE
Panel Chair
AF | BCMR | CY1999 | BC-1993-05944
In the alternative: He be reconsidered for promotion by the FY 1990 Air Force Reserve General Officer Selection Board in which any reference in the candidates’ Forms 707A, Officer Effectiveness Reports (OERs) which state that the candidate is in the top X% of officers (where X is a number between one and one hundred) is deleted, with special instructions that no candidate will be discriminated against because of corrections to the record or due to being a navigator; with the exception of the...
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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). 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...
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The Air Force officer promotion boards which considered his records for promotion were held in violation of statute, DoD Directive and Air Force regulations. DPPPA indicated that if the Board should grant the applicant’s request to receive SSB consideration by the CY93A central selection board, with a corrected Apr 93 OPR and CY93A (P0593A) PRF, the “corrected by” annotations on those reports (and any other corrected documents in his OSR) will be removed. In this respect, we note the...
AF | BCMR | CY1999 | BC-1995-00115
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They have reviewed the 5 proceedings of the BO1 and resulting discharge action. Although we find insufficient evidence to support this contention, after thoroughly reviewing the additional documentation submitted by applicant's counsel, and considering the totality of the evidence of record, we believe the applicant has been the victim of an error or injustice. We find no evidence the applicant placed altered OERs in his records.