RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  96-02277
            INDEX NUMBER:  131.00, 131.10
                                111.01, 107.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be given retroactive  promotion  to  the  grade  of  lieutenant
colonel by the Calendar Year  (CY)  1993A  Central  Lt  Col  Selection
Board.

2.  The Officer Selection Brief (OSB) reviewed by  the  CY93A  Lt  Col
Board be corrected to reflect three Meritorious Service Medals  (MSMs)
and his duty position as Chief, Management and Requirements Branch, HQ
PACAF.

3.  The Officer Performance Report (OPR) closing  12  August  1993  be
removed from his record and a reaccomplished OPR be substituted in its
place, even if the Board grants him retroactive promotion.

If his request for retroactive  promotion  is  denied  and  the  Board
directs consideration for promotion by Special Selection Board  (SSB),
applicant also requests that:

4.  The PME for Air Command and Staff College (ACSC) be masked on  all
of the benchmark records when meeting the SSBs; and if PME for ACSC is
not masked, request a letter be placed in his  promotion  folder  when
meeting the SSBs stating he was in the process of completing ACSC, and
had not yet completed it due to circumstances beyond his control.

5.  He be provided consideration for promotion by  SSB  for  both  the
CY93A and CY94A Lt Col Boards.

6.  Prior to the SSBs, he be given 60 days in  which  to  procure  new
Promotion Recommendation Forms (PRFs) from his senior raters for  both
the CY93A and CY94A Lt Col Boards.

7.  He be given a slot  to  attend  Senior  Service  School  (SSS)  in
residence and that a letter be placed in his promotion folder  stating
he was unable to complete SSS due to circumstances beyond his control.

8.  A directive be issued by the AFBCMR (when and if  promoted  to  Lt
Col) upon his return to active duty to include  a  two  or  three-year
period of time prior to becoming  eligible  for  in-the-promotion-zone
(IPZ) consideration for the grade of colonel.

By letter, dated 5 November 1996, applicant amended his application to
include the following requests that (Exhibit A1):

1.  His nonselections for promotion to the grade of lieutenant colonel
be declared null and void.

2.  The PRFs he received for the CY93A and CY94A Lt Colonel Boards  be
upgraded to “Definitely Promote” recommendations.

3.  His records be corrected to reflect  promotion  to  the  grade  of
lieutenant colonel as if selected by the CY93A Lt Colonel Board.

4.  The Board reinstate him to active duty and correct his  record  to
reflect continuous active duty (with all pay,  rights,  benefits,  and
other entitlements) until he can be considered  by  selections  boards
conducted squarely  according  to  the  requirements  of  statute  and
directive.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He was returned to active duty on 25 October 1992.  For two years  and
three months he had no evaluation  reports  on  his  duty  performance
since he was a civilian.  During that time he lost the possibility  of
up to four new OPRs.  Instead, he only had one OPR written  before  he
met the CY93A Lt Col Board.  The officers he was compared  against  at
the Lt Col board had five or six reports instead of his  three.   (Tab
2)

In light of what he has been through, a direct promotion to the  grade
of lieutenant colonel is the right thing to do.  He does  not  believe
an SSB can fairly and justly evaluate him for promotion to  lieutenant
colonel.  With the missing evaluations between 11 April  1990  and  12
August 1993, it would be very difficult, at best, for an SSB to fairly
assess his promotion potential when comparing  him  to  the  benchmark
records of his peers.  (Tab 2)

Although the citation  for  the  MSM  (2OLC)  may  have  been  in  his
selection folder, the OSB for the CY93A  board  did  not  reflect  the
correct number of awarded MSMs, three.  Additionally, the OSB did  not
indicate his duty title of Chief, Management and Requirements  Branch,
HQ PACAF (Lt Col billet).  Due to  administrative  oversight,  the  AF
Form 2096 was not prepared in time to reach his records and thus,  was
not reflected on the OSB.   The  inaccuracy  of  the  OSB  could  have
adversely impacted the board’s evaluation.  (Tab 3)

As explained by the rater, indorser, and senior rater, the OPR closing
12 August 1993 did not include significant facts which would have  had
a strong influence on his record of performance.  The contested report
did not include significant accomplishments while  stationed  at  Osan
AB, Korea.  The reaccomplished OPR truly depicts those accomplishments
that were left out in the original OPR.  (Tab 4)

Following his return to active duty, he had less  than  11  months  to
complete PME (ACSC) which  is  crucial  for  promotion  to  lieutenant
colonel.  On the average, a major is given approximately four years to
complete ACSC from the time he gets his line number to  major  to  the
time he meets his primary lieutenant colonel board.  (Tab 5)

Applicant’s complete statement and documentary evidence  submitted  in
support of his application are included as Exhibit A, with 10 Tabs.

(Amended request)

The selection boards which considered him for promotion  violated  the
minimum due process requirements of  law  and  directive.   Air  Force
procedures  ignored  the  Department  of   Defense   (DOD)   directive
requirement for separate boards and separate board  reports  were  not
issued.  The operation of the selection boards failed to  comply  with
Sections 616 and 617.  In addition, the  board  president’s  role  was
contrary to directive and Congressional intent.  As the results of the
illegally  conducted  selection  boards  are   without   effect,   his
nonselections should be set aside.

Additionally, the flaws  of  the  original  boards,  coupled  with  an
arbitrary and capricious scoring system of SSBs and the  inability  to
recreate his record deny SSBs the opportunity to provide him ‘fair and
equitable’ reconsideration or  ‘full  and  fitting  relief.’   As  his
active service “cannot be terminated...unless [I had  been  considered
by boards conducted] as  required  by  statute  and  regulation”  (see
Doyle), he is entitled to reinstatement until  those  requirements  of
law can be met.  He also requests his record be corrected  to  reflect
selection for lieutenant colonel as any SSB will not be  able  view  a
complete record of his performance and other credentials (notably PME)
as he was denied the opportunity to build that performance record  and
complete the career enhancing courses due solely to his first  illegal
separation.

In his amendment, applicant provided his  19-page  expanded  statement
concerning  defective  selection  boards  and  a   document   entitled
“Evidentiary Support:  Illegal Selection Boards.”  (Exhibit A1).

___________________________________________________________________

STATEMENT OF FACTS:

On 4 August 1978, applicant was appointed as  second  lieutenant,  Air
Force Reserve.  He was voluntarily ordered to extended active duty  on
11 December 1978.  He served on continuous active, was integrated into
the Regular component on 21 March 1985, and progressively promoted  to
the grade of captain.  As a result of his nonselection  for  promotion
to the grade of major by the CY88 and  CY89  Central  Major  Selection
Boards, he was involuntarily separated from active  duty  on  31  July
1990.

On 22 May 1991, the AFBCMR favorably  considered  applicant’s  request
that the OER rendered for the period 1 June 1985 through 31  May  1986
be declared void and removed from  his  records.   The  Board  further
recommended that he be considered for promotion by SSB  for  the  CY88
and CY89 Central Major Boards and that he be allowed 60 days to secure
a new Promotion Recommendation Form (PRF) from the  senior  rater  for
the CY89 Central Major Board.

The applicant was selected for retroactive promotion by  SSB  for  the
CY88 Central Major Board.  As a result of his selection for  promotion
to the grade of major, the AFBCMR further recommended approval of  his
request to be reinstated to active duty.  The applicant was reinstated
to active duty on 25 October 1992, in the grade of major, with a  date
of rank of 1 October 1989.

On 22 April 1993, the AFBCMR favorably considered applicant’s  request
that he be considered for Intermediate Service School (ISS) candidacy,
under the coupled system, by SSB for the  CY88  Central  Major  Board.
The Board further recommended that if he  was  identified  as  an  ISS
candidate, a letter  be  placed  in  his  records  indicating  he  was
selected for ISS but unable to attend based  on  operational  reasons.
The SSB  convened  on  15  November  1993,  and  determined  that  the
applicant would not have  been  selected  for  ISS  candidacy  by  the
original board.

Applicant  was  awarded  the  MSM  (2OLC)  for  outstanding  noncombat
meritorious service during the period 29 October 1992-1 October  1993,
per Special Order GB-001, dated 15 October 1993.

He was considered and not selected  for  promotion  to  the  grade  of
lieutenant colonel by the CY93A and CY94A Lt Colonel Boards.  The  MSM
(2OLC) was not reflected on the OSB reviewed by the CY93A Lt Col Board
which convened on 12 October  1993.   It  was  reflected  on  the  OSB
reviewed by the CY94A Lt Col Board which convened on 11 October 1994.

A resume of applicant’s  OERs/OPRs  subsequent  to  his  promotion  to
captain follows:

      PERIOD CLOSING   OVERALL EVALUATION

       25 Jun 83 1-X-1
       31 May 84 1-1-X
       31 May 85 1-1-1
       31 May 86 Removed by Order of SAF
       31 May 87 1-1-1
       11 Apr 88 1-1-1
       11 Apr 89 Meets Standards (MS)
       11 Apr 90 MS
       12 Apr 90 - 24 Oct 92 - No report available.  Member
                                    restored   to   active   duty   by
Direction
                               of SAF under AFR 31-3, AFBCMR.
  *    12 Aug 93 MS
  #    14 Jun 94 MS
       12 May 95 MS

* - Contested report.  Top report in  file  when  considered  and  not
selected for promotion by the CY93A Central Lt Col Board.

# - Top report in file when considered and not selected for  promotion
by the CY94A Central Lt Col Board.

The OSB reviewed by the CY94A Lt Col Board  reflects  the  duty  title
“Chief, Management and Requirements Section,” with an  effective  date
of 27 September 1993;  and  the  duty  title  “Chief,  Management  and
Requirements Branch,” with an effective date of 25 February 1994.

As a result of his second nonselection for promotion to the  grade  of
lieutenant colonel, the applicant was required to  separate  no  later
than 31 May 1995.  He  selected  early  retirement  and  retired  from
active duty on 30 June 1995.  He was credited with 16 years, 6 months,
and 20 days of active service for retirement.

___________________________________________________________________

AIR FORCE EVALUATION:

The Senior Service School Assignments Section, AFPC/DPAJE,  stated  it
would  be  inappropriate  to  mask  PME  on  benchmarked  records   if
applicant’s record meets an SSB, as it was  not  masked  for  officers
meeting the original board and it would be an injustice to other “non-
promotes” from that board, as well as an inequity to  those  who  were
not selected as school candidates (both possibly based upon  the  fact
they did not have PME completed.)  A letter in  the  promotion  folder
would also be inappropriate, as his situation is not  unlike  numerous
other individuals completing ACSC.  A letter of this nature would  not
be equitable to those other people who met the same board and had  not
completed ACSC and were possibly deferred as a result.

If applicant would be selected to lieutenant colonel  by  an  SSB,  at
that time his record would be scored against “benchmark”  records  and
he would receive school candidacy if  appropriate.   If  selected  for
lieutenant colonel, whether receiving  candidacy  status  or  not,  he
would be afforded the opportunity to compete  for  and  attend  senior
service school.

The complete evaluation is at Exhibit C.

The Appeals and SSB Branch, AFPC/DPPPA, reviewed this application  and
recommended denial due to lack of merit.   Their  comments,  in  part,
follow.

Regarding applicant’s request that the OPR closing 12 August  1993  be
replaced with a reaccomplished report, DPPPA stated  that  nowhere  in
the letters of support from the members of  the  rating  chain  is  it
stated specifically what is erroneous in  the  original  report.   Any
report can be rewritten to be more eloquent  and  hard-hitting.   When
the rating chain  signed  the  original  report  in  1993,  they  were
ensuring it was complete and accurate.

DPPPA stated applicant’s request to have the MSM (2OLC)  reflected  on
the OSB for the CY93A board is unfounded.  The decoration was  awarded
by special order on 15 October  1993.   Until  the  special  order  is
accomplished, a decoration does not exist.  The CY93A  board  convened
on 12 October 1993, at which time the  decoration  was  not  approved.
The award was not required to be filed in  the  applicant’s  selection
folder until 14 December 1993, well after the contested board.

The duty title requested by the applicant on his  CY93A  OSB,  is  not
supported by appropriate documentation.  The AF Form 2095 included  in
his appeal package is unofficial and invalid.  It  was  not  processed
through the appropriate channels, as indicated by  the  blank  row  of
coordination blocks in Section VIII, and was, therefore, not  awarded.
The requested duty title does appear on the OSB for the  CY94A  board,
with an effective date of 25 Feb 94.  The applicant has  not  provided
evidence that he was serving in the capacity of a branch chief or that
the duty title was ever awarded to him prior to the CY93A board.

The applicant’s request to have the PME information on the sampling of
records from the original board masked should he be awarded an SSB  is
without foundation.  This request is in direct violation of  equitable
consideration for all officers.  While he states he was  placed  at  a
disadvantage regarding the time he had to complete PME, DPPPA was  not
convinced by his statements.  Upon  reviewing  the  letters  from  his
supervisor regarding the applicant’s PME, it is apparent that his two-
time failure to pass the Block I PME examination  was  a  more  likely
reason for the absence of PME in his record.  Each  failure  caused  a
delay in the applicant’s ability to immediately resume PME, and likely
resulted in his inability to complete PME prior to the CY93A Board.

In  the  absence  of  changes  in  the  records  of   performance   or
impropriety, reaccomplished PRFs are not warranted.   Furthermore,  no
support is provided from the applicant’s senior rater on either of the
PRFs, nor from the Management Level Evaluation Board (MLEB) president.
 This support is required to substantiate a PRF appeal.

Noting applicant’s request for direct promotion, DPPPA stated  he  has
failed to prove that his situation was unfailingly unique or  that  he
has been treated unfairly in the promotion process.

The complete evaluation is at Exhibit D.

The Chief, Selection Board Secretariat, AFPC/DPPB,  provided  comments
addressing applicant’s allegations pertaining to “Defective  Selection
Boards.”   DPPB  disagreed  with  applicant’s  contention   that   his
promotion boards were in violation of Sections 616 and  617,  10  USC.
Air Force legal representatives  have  reviewed  their  procedures  on
several occasions during the past few years and have determined  those
procedures comply with applicable statute and policy.

All  Air  Force  promotion  boards  comply  with  DODD  1320.12.   The
actions/responsibilities of each board  president  are  in  compliance
with governing directives.

DPPB disagreed with applicant’s contention that the Air Force  neither
developed nor  issued  standard  operating  procedures  for  selection
boards.  Upon the approval and publishing of DODD 1320.12, 4  Feb  92,
all Air Force promotion boards were placed on hold pending a  complete
rewrite  of  AFR  36-89,  Promotion  of  Active  Duty  List   Officers
(subsequently superseded by AFI 36-2501).  Only after the new AFR  was
approved by the Office of the Secretary of Defense  and  published  17
Apr 92, did they resume promotion boards.

DPPB disagreed with applicant’s contention that an SSB cannot  provide
a full measure of relief since the benchmark records used for  an  SSB
are a  tainted  record  sampling.   The  identification  of  benchmark
records from each selection board  is  in  compliance  with  governing
directives.

The complete evaluation is at Exhibit E.

The Senior Attorney-Advisor, AFPC/JA,  reviewed  applicant’s  original
application (Exhibit A) and discerned no legal  issues.   He  reviewed
the “additional material” submitted with  the  applicant’s  letter  of
5 November 1996 (Exhibit A1)  and  provided  comments  addressing  the
applicant’s arguments that the promotion board procedures violate both
statute and DOD Directive, the role of the  board  president  violates
DOD Directive, and that  his  nonselection  for  promotion  cannot  be
remedied by SSB consideration.   JA  stated  that  the  applicant  has
failed to present relevant evidence proving the existence of any error
or injustice prejudicial to his substantial rights with respect to the
promotion recommendation and promotions processes that considered him.
 On that basis, they  recommended  that  the  application  be  denied.
(Exhibit F)

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant disagreed with the advisory opinions and asks that the Board
dismiss the opinions as unsupported, conclusory statements designed to
deceive and to obfuscate the facts in this matter.   He  provided  his
expanded comments addressing the specific issues of his appeal.

In further support of his request, he provided a  statement  from  the
NCO of the Information Management Section, and  additional  statements
from the rater and reviewer on the OPR closing 12 August 1993, and the
rater on the OPR closing 14 June 1994.

Applicant’s 34-page statement, with attachments, is at Exhibit H.

___________________________________________________________________

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  warranting  corrective
action.

      a.  Applicant’s contentions that  the  Officer  Selection  Brief
(OSB) reviewed by the CY93A Central Lieutenant Colonel Selection Board
did not reflect the correct  number  of  awarded  Meritorious  Service
Medals (MSMs) and did not reflect his duty title of Chief,  Management
and Requirements Branch are duly noted.  However, by  regulation,  the
MSM (Second Oak Leaf Cluster (2OLC)) awarded by  special  order  dated
15 October 1993 was not  required  to  be  filed  in  the  applicant’s
records until 60 days after the date of the order.  Therefore, it  was
not required to be filed in  his  record  and  reflected  on  the  OSB
reviewed by the CY93A Lt Colonel Board which convened  on  12  October
1993.  Convening dates of  selection  boards  are  widely  publicized.
Therefore, it was incumbent upon the members of the applicant’s rating
chain to follow the processing of the award and insure that it reached
his selection folder prior to the convening of the promotion board, if
they desired it to be considered.  This was especially critical  since
the closeout date of the award was so close  to  the  promotion  board
convening date.  A review of the evidence provided did not persuade us
that any attempt was made by either the applicant or  the  members  of
his rating chain to insure that the  MSM(2OLC)  was  included  in  the
applicant’s selection folder for consideration by the selection board.
 In addition, we are not convinced by the evidence provided  that  the
applicant had been  officially  awarded  the  duty  title  of  “Chief,
Management and Requirements Branch” prior to the CY93A Board.  In view
of the foregoing, and absent evidence to  the  contrary,  we  find  no
basis to favorably consider the applicant’s request to change the  OSB
reviewed by the CY93A Lt Col Board.

      b.  Applicant contends that the OPR closing 12 August  1993  did
not include significant facts which would have had a strong  influence
on his record of performance.  However, after reviewing  the  evidence
provided, including the supporting statements from the  evaluators  on
the contested report, we are not  persuaded  that  the  report  is  an
inaccurate or unjust assessment  of  the  applicant’s  performance  as
rendered, only that it could have been written differently to  include
additional accomplishments.  Therefore, in the absence  of  persuasive
evidence that the evaluators were precluded from rendering an unbiased
assessment of the applicant’s duty performance, we find no  compelling
basis to favorably consider the  applicant’s  request  to  remove  the
contested report from his record  and  substitute  the  reaccomplished
report in its place.

4.  After careful consideration of the evidence provided, we found  no
evidence that the applicant’s records were improperly constituted when
he was considered for promotion by the CY93A  Lt  Colonel  Board.   In
addition, we have seen no evidence which would lead us to believe that
his records were so inaccurate or misleading that the members  of  the
duly constituted selection boards, both the CY93A  and  the  CY94A  Lt
Colonel  Boards,  applying  the  complete  promotion  criteria,   were
precluded  from  rendering  a  reasonable  decision   concerning   his
promotability in comparison to his peers.  In view of  the  foregoing,
and in the absence of evidence to the contrary, we find no  compelling
basis to recommend favorable consideration on the applicant’s  request
for direct promotion  to  the  grade  of  lieutenant  colonel  or  his
alternate request for consideration for promotion by Special Selection
Board.

5.  The applicant’s numerous assertions concerning the  statutory  and
regulatory compliance of central selections boards,  the  legality  of
the promotion recommendation process, and the legality of the  Special
Selection Board (SSB) process, are duly noted.   However,  we  do  not
find these assertions, in and of themselves,  sufficiently  persuasive
to override  the  rationale  provided  by  the  respective  Air  Force
offices.   Therefore,  we  agree  with  the  recommendations  of   the
appropriate Air Force offices and adopt the rationale expressed as the
basis of our decision that the applicant has  failed  to  sustain  his
burden of establishing that he has suffered  either  an  error  or  an
injustice.

___________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  material  error  or  injustice;
that the application was denied without  a  personal  appearance;  and
that the application will only be reconsidered upon the submission  of
newly  discovered  relevant  evidence   not   considered   with   this
application.

___________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 22 June 1999, under the  provisions  of  AFI  36-
2603:



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

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Aug 96, w/atchs.
    Exhibit A1. Letter from Applicant, dated 5 Nov 96, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPAJE, dated 12 Oct 96.
    Exhibit D.  Letter, AFPC/DPPPA, dated 12 Nov 96.
    Exhibit E.  Letter, AFPC/DPPB, dated 13 Dec 96.
    Exhibit F.  Letter, AFPC/JA, dated 7 Mar 97.
    Exhibit G.  Letters, SAF/MIBR, dated 31 Mar 97 and
                3 Apr 97.
    Exhibit H.  Letter from Applicant, dated 28 May 97, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair