RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-00291
                 131.09   131.10
                 COUNSEL:  Guy J. Ferrante

                 HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

He be directly  promoted  to  the  grade  of  lieutenant  colonel  and
reinstated to active duty.

Or, in the alternative,

He  be  reinstated  to  active  duty  and  given   “valid”   promotion
consideration by Special Selection Board (SSB) for the  Calendar  Year
1991A (CY91A) and CY91B Lieutenant Colonel  Central  Selection  Boards
(CSBs); i.e., with overall recommendations of “Definitely Promote(DP)”
on    the    Promotion     Recommendation     Forms     (PRFs)     and
faithfully/realistically replicated competition.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His nonselections by the CY91A and CY91B CSBs  were  legally  void  ab
initio because of the unauthorized way they were conducted;  i.e.,  in
violation of statute  and  regulation.  The  nonselections  were  also
erroneous because of the incomplete records that  were  considered  by
both of those boards.  The subsequent actions by  SSBs  neither  cured
the illegality of his original nonselections nor provided him the fair
and equitable promotion consideration to which he is legally entitled.
This was because the  SSBs  did  not  replicate  the  competition  the
applicant would have faced at the CSBs and because of the illegal  and
inequitable PRF with which he competed. Because the applicant has  not
yet been validly nonselected for promotion, his  mandatory  separation
was  unwarranted  and  he  is  entitled,  by   law,   to   retroactive
reinstatement to active  duty.  The  most  fitting  relief  is  direct
promotion to lieutenant colonel. Additional SSB  considerations  would
be unavailing. In footnotes,  counsel  suggests  that  the  Board  can
overcome the [SSB] hurdles by directing that the PRFs reflect DPs  and
the SSBs faithfully and realistically  replicate  the  competition  at
CSBs.

Applicant’s counsel provides  a  23-page  brief,  a  declaration  from
another applicant, a transcript excerpt, and other documentation.

A copy of applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was nonselected for promotion by the CY91A  CSB  (15 Apr
91).  The  PRF  had  an  overall  recommendation  of   “Promote.”   He
subsequently discovered that citations  for  the  Air  Medal  and  Air
Commendation Medal had been missing from his record. He applied to the
AFBCMR, which directed that he be reconsidered by SSB  for  the  CY91A
board with a complete record.

In the meantime, he was nonselected by the CY91B CSB (2 Dec  91).  The
overall recommendation of  that  PRF  was  also  “Promote.”   He  then
discovered that the citation for the Meritorious  Service  Medal,  2nd
Oak Leaf Cluster, was missing from  his  record.  He  applied  to  the
AFBCMR, which directed that he  receive  SSB  consideration  for  this
board as well.

He was not recommended for  promotion  by  either  of  the  SSBs  and,
because of his two promotion passovers, was mandatorily retired  on  1
Jan 96 in the grade of major with 20  years  and  16  days  of  active
service
_________________________________________________________________

AIR FORCE EVALUATION:

The Recorder, USAF Officer Evaluation Boards, HQ AFPC/DPPPEB, reviewed
the appeal and addresses only the technical aspects OF  this  case  as
they pertain to the PRF. The  author  provides  counter  arguments  to
applicant’s contentions. In summary, the author opines  that,  despite
the extensive legal opinions provided by the applicant,  there  is  no
evidence  to  support  his  claim  that  his  PRF  should  be  voided.
Stratification among PRFs is important  and  a  tool  used  by  senior
raters to make their officers stand out during both a Management Level
Evaluation Board (MLEB)/Management Level Review  (MLR)  and  the  CSB.
Senior raters are solely responsible for the content in a PRF.   There
is  no  evidence  provided  which  shows  Air  Force  Regulations  and
guidelines were not adhered to.  Denial is recommended.

A copy of the complete evaluation is at Exhibit C.

The Chief of Ops, Selection  Board  Secretariat,  HQ  AFPC/DPPB,  also
evaluated this case and does not agree with counsel’s allegation  that
the Air  Force  promotion  procedures  are  in  violation  of  various
sections of Title 10, USC.  The author discusses the  order  of  merit
(OOM), the alpha select list, the scoring scale, and the  SSB  process
used by the Air Force. The author finds the application without  merit
and recommends denial.

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

The Chief, Appeals & SSB Branch, HQ AFPC/DPPPA,  reviewed  the  appeal
and contends that, absent clear-cut evidence the applicant would  have
been selected by the CY91A or CY91B boards, a duly  constituted  board
comprised of  senior  officers  is  the  most  appropriate  method  of
determining his potential to serve  in  the  next  higher  grade.  The
applicant’s circumstances are not extraordinary  to  warrant  usurping
the board’s prerogative to do so. Further, if the  applicant  were  to
prove the promotion system illegal (which the author does not  believe
he has), then the remedy would not be  to  promote  the  applicant.  A
reaccomplishment of the Boards would be the only logical  remedy.  The
Board should also consider the fact that the applicant was promoted to
the grades of captain and major by boards which used the  same  system
he is now challenging as illegal.  Denial is recommended.

A copy of the complete evaluation is at Exhibit E.

The  Senior  Attorney-Advisor,  HQ  AFPC/JA,  provides   a   five-page
discussion  regarding  applicant’s  contention  that  the  Air   Force
promotion system and the  SSB  process  violate  statute.  The  author
argues against applicant’s request for direct promotion and gives  his
rationale therefor. The author suspects that the reason the  applicant
was not selected was that his record was simply not  strong  enough---
not because of any error or injustice requiring further action by  the
AFBCMR---but because his actual record of performance  fell  short  of
the requisite standard. For the reasons outlined  in  his  evaluation,
the author opines that this application should be denied.

A copy of the complete evaluation is at Exhibit F.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the evaluations and provides a 15-page rebuttal  with
six attachments. Counsel objects to the consideration of  any  factual
or procedural representations by AFPC that are undocumented  and  thus
amount to no more than the convenient, unsworn “spin” of  the  author.
Counsel gives examples and asserts that the applicant is  entitled  to
have his appeal adjudicated on the basis of real evidence, rather than
opinions or wishful thinking. Counsel further contends that AFPC has a
documented history of making false representations to  the  Board  and
gives examples. He provides counter-arguments to the advisory opinions
and concludes that the applicant could not be forced to retire without
two valid non-selections to  the  grade  of  lieutenant  colonel.  The
applicant was not validly non-selected  by  regular  promotion  boards
both because of the illegal conduct of those boards and because of the
record errors that occasioned his SSB  reconsideration  in  the  first
place. Therefore, there was no valid legal basis for  the  applicant’s
mandatory retirement.

A copy of the complete rebuttal, 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. Previous AFBCMR  appeals
recommended appropriate corrections to his record and he was  properly
given SSB consideration for the CY91A  and  CY91B  lieutenant  colonel
boards. The applicant apparently found the SSB process acceptable then
and apparently did not take exception to the promotion process when he
was selected for captain and major. Now that he has  been  nonselected
by the CY91A/CY91B boards and  the  SSBs  therefor  he  concludes  the
entire system is illegal and desires a direct promotion to  the  grade
of lieutenant colonel or, in the alternative, SSB reconsideration with
the  CY91A  and  CY91B  PRFs  reflecting  “DP”  recommendations,  etc.
Applicant’s arguments regarding these issues as well as  his  numerous
contentions concerning the statutory compliance of  central  selection
boards, the promotion recommendation appeal process, the  legality  of
the SSB process, his allegedly  invalid  nonselections  and  mandatory
retirement, inter alia, were duly noted.   However,  we  do  not  find
these assertions, in and by  themselves,  sufficiently  persuasive  to
override the rationale provided by the Air Force  offices  of  primary
responsibility. Therefore, we agree with the  recommendation  provided
by the Air Force and adopt the rationale expressed as  the  basis  for
our conclusion that the applicant failed  to  sustain  his  burden  of
having suffered either an error or an injustice  warranting  favorable
action on these requests.

4.    The documentation provided with this case was sufficient to give
the Board a clear understanding of the issues involved and a  personal
appearance, with or without legal counsel, would not  have  materially
added to that understanding.  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 26 May 1999, under the provisions of AFI 36-2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Mr. Charles E. Bennett, Member
                  Mr. Jackson A. Hauslein, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 Feb 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPEB, dated 13 Feb 98.
   Exhibit D.  Letter, HQ AFPC/DPPB, dated 26 Mar 98, w/atch.
   Exhibit E.  Letter, HQ AFPC/DPPPA, dated 13 Apr 98.
   Exhibit F.  Letter, HQ AFPC/JA, dated 4 Jun 98.
   Exhibit G.  Letter, AFBCMR, dated 22 Jun 98.
   Exhibit H.  Letter, Counsel, dated 22 Jul 98, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair