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AF | BCMR | CY1999 | 9305944
Original file (9305944.doc) Auto-classification: Denied

                            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

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