RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00348
                       INDEX CODE:  131.00

                       COUNSEL: NONE

                       HEARING DESIRED: Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His nonselections for promotion to the grade  of  major  be  set
aside.

2.    His Promotion Recommendation Forms (PRFs) for the CY95A (P0495A)
and CY96A (P0496A)  selection  boards  be  upgraded  to  a  Definitely
Promote (DP).

3.    His Officer Performance Report (OPR), rendered for the period 12
Feb 93 through 11 Jun 93, be declared void and removed from his record
or attach the rater’s letter provided as a memorandum of mitigation to
the report.

4.    His records be corrected to show he was promoted to the grade of
major as if selected by the CY95A Central Major Board, which  convened
on 5 Jun 95.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His PRF “Promote” recommendation was awarded despite the fact that his
Record of Performance contained the tainted OPR  closing  11  Jun  93.
His promotion boards were in violation of various  sections  of  Title
10, United States Code (USC), DoD Directive and Air Force regulation.

In support of his request, applicant submits an extensive statement, a
letter  from  the  rater  of  the  contested  OPR,  dated  10 Mar  97,
additional  documents  associated  with  the  issues  cited   in   his
contentions, and a congressional  inquiry,  with  attachments.   These
documents are appended at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

On 21 Sep 84, the applicant was appointed a second lieutenant, Reserve
of the Air Force.  He was integrated into the Regular Air Force on  21
Sep 88 in the grade of captain, effective and with a date of  rank  of
21 Sep 88.

Applicant's OPR profile, commencing with the report closing 2 Dec  90,
follows:

           PERIOD ENDING              EVALUATION

                    2 Dec 90 Meets Standards (MS)
                   22 Feb 91 Education/Training Report
                   29 Dec 91     MS
                   17 Jun 92        MS
                   11 Feb 93     MS
                 * 11 Jun 93     MS
                   24 Jan 94     MS
                   24 Jul 94     MS
                 # 16 Feb 95        MS
                 ## 4 Dec 95     MS

*  Contested OPR

# Top report at  the  time  he  was  considered  and  nonselected  for
promotion to major by the CY95A Central Major Board, which convened on
5 Jun 95.

## Top report at the  time  he  was  considered  and  nonselected  for
promotion to major by the CY96A Central Major Board, which convened on
4 Mar 96.

On 30 Jun  96,  the  applicant  was  relieved  from  active  duty  and
voluntarily retired effective 1 Jul 96 in the grade of captain,  under
the provisions of AFI 36-3203 (temporary early retirement  authority).
He served a total of 17 years  and  26  days  of  active  service  for
retirement.
_________________________________________________________________

AIR FORCE EVALUATIONS:

The USAF Evaluation Board Recorder, HQ AFPC/DPPPEB,  stated  that  the
letter of support from the rater is unclear.  By signing  the  report,
both the rater and additional rater  certified  the  report  contained
accurate  information  about  the  ratee’s  performance   during   the
reporting period.   DPPPEB  recommended  the  applicant’s  request  be
denied based upon the fact that there is no evidence  to  support  his
claim that he does not have all levels of concurrence based  upon  AFI
36-2401  requirements;  and,  that  the  report  contains  no  invalid
statements which would make it illegal under the rules of the  Officer
Evaluation System (OES). DPPPEB stated that, in order to upgrade a PRF
rating to  a  “Definitely  Promote”  (DP),  the  governing  Air  Force
instruction  requires  concurrence  by  both  the  senior  rater   and
Management Level Evaluation Board  (MLEB)  president.   The  applicant
provided no such concurrence.  Upon reviewing the applicant’s CY95 and
CY96 PRF, DPPPEB found them to contain nothing but  valid  statements.
DPPPEB stated that the applicant’s contention that  the  MLEB  process
was illegal because it was a promotion  board  by  definition  has  no
merit.  The MLEB is not a “board” despite the term in its  title,  and
thus not subject to Title 10 USC.  The MLEB process is a safeguard for
officer’s whose senior raters did not have enough eligibles to award a
“DP” or  wished  to  aggregate  their  officers  for  competition  for
possible aggregate/carryover “DPs.”

DPPPEB stated that there is no evidence to  support  an  illegal  OPR,
which in turn denies allegations regarding the  applicant’s  CY95  and
CY96 PRF.  The  applicant’s  contention  that  the  MLEB  process  was
illegal is also without merit.  Without further evidence  and  support
from the senior rater  and  MLEB  president,  DPPPEB  recommended  the
applicant’s original PRFs stand.  A complete copy of the evaluation is
attached at Exhibit C.

The Selection Board Secretariat,  HQ  AFPC/DPPB,  disagrees  with  the
applicant’s contention that his promotion boards were in violation  of
various sections of Title 10, United States  Code  (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 statutes and policy.  DPPB disagrees
with the  applicant’s  contention  that  the  Air  Force  has  neither
developed nor  issued  standard  operating  procedures  for  selection
boards.  Upon 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 (subsequently superseded by AFI  36-2501).   Only
after the new AFR 36-89 was approved by the Office of the Secretary of
Defense and published 17 Apr 92, did promotion  boards  resume.   DPPB
indicated that the quality review worksheet the applicant refers to is
a computer generated scoring data on individual considerees - there is
no form.  It is transitory in nature and destroyed  along  with  other
scores and administrative paperwork from  the  selection  boards  upon
approval of the board results by the Assistant Secretary of Defense.

DPPB stated that the applicant’s claim  that  the  below-the-promotion
zone (BPZ) offset was not  completed  properly  is  incorrect.   Every
board member serving on the line board participated in the decision to
use the BPZ quotas.  DPPB disagrees with  the  applicant’s  contention
that the board president’s role violates DoDD restrictions.  As to the
scoring scale used by the Air Force, DPPB indicated that  as  long  as
each board  member  applies  their  individual  standard  consistently
throughout the scoring process, each consideree will get  a  fair  and
equitable evaluation.  An alpha select list, which must be attached to
the official board report, is created after the board members  depart.
The alpha list is merely a recapitulation  of  the  selects  from  the
board in alpha sequence vice numerical sequence.  With regard to board
members  departing  Randolph  AFB  days  before  the  board  is   even
adjourned,  DPPB  stated  that  the  Medical   Service   Corps   (MSC)
competitive category board was held concurrently with  the  CY95  Line
competitive category board.  When the MSC board members had  completed
all board responsibilities, they were dismissed; and,  when  the  Line
board members completed all  board  responsibilities,  they  too  were
dismissed.  These procedures are in keeping with Section 621, 10 USC.

DPPB  disagrees  with  the  applicant’s  contention  that  a   Special
Selection Board (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.   DPPB  disagrees  with  the
applicant’s contention that the SSB scoring system is  “arbitrary  and
capricious” because of possible scoring inversions.  DPPB stated  that
it should be noted that the numerical scores from the  original  board
have noting to do with the numerical scores  given  to  the  benchmark
records by an SSB, only the select/nonselect status of  the  benchmark
is important.  Because the  benchmark  records  are  very  similar  in
quality, it is not unusual to have some  inversion  in  the  benchmark
order of merit (OOM) created by the SSB.  Regardless of the situation,
SSB members are not informed which record is a benchmark record  or  a
consideree record.

DPPB recommended the applicant’s request be denied.  A  complete  copy
of this evaluation is appended at Exhibit D.

The Appeals and SSB Branch, HQ AFPC/DPPA, concurred with the  advisory
opinions written by HQ AFPC/DPPPEB and HQ AFPC/DPPB.  DPPA stated that
the applicant has not proven the contested OPR is flawed.   The  rater
of the report does not explain what precluded him from  including  the
information on the report when it was originally written.  Since there
is no higher rating than “Meets Standards” and the  contested  OPR  is
marked “Meets Standards” in every performance factor,  DPPA  does  not
understand what ratings were “arbitrarily  limited.”   DPPA  does  not
believe any correction to  the  applicant’s  record  is  necessary  in
relation to his appeal, therefore, SSB consideration is not  warranted
(or requested).  DPPA strongly recommended denial of  the  applicant’s
request for direct promotion.  Should the Board direct corrections  to
the applicant’s  officer  selection  record  (OSR),  DPPA  believes  a
Special Selection Board (SSB) is appropriate.

DPPA stated that insufficient relevant evidence has been presented  to
demonstrate the existence of probable error or injustice in regard  to
the applicant’s request for direct promotion to the  grade  of  major.
Absent clear-cut evidence the applicant would have been a selectee  by
the P0495A board, DPPA believes a duly constituted board applying  the
complete promotion criteria is in the most  advantageous  position  to
render this vital determination.  Other than  his  own  opinions,  the
applicant has provided no substantiation to his allegations.  Based on
the evidence provided, DPPA recommended the  applicant’s  requests  be
denied.  A complete copy of this evaluation is appended at Exhibit E.

The Senior Attorney-Advisor, HQ AFPC/JA, stated that contrary  to  the
brief’s author, it is not an error to use a “board” process to  assist
in awarding promotion recommendations.  Applicant’s position seems  to
presuppose that all boards are 10 USC 611(a) promotion  boards.   This
is obviously not true.  The Air Force can - and does  -  commonly  use
other types of boards of officers to assist decision-makers.  This  is
exactly what the Management Level Review (MLR) does for senior raters.
 For that reason, applicant’s argument that MLRs  are  flawed  because
they fail to incorporate the safeguards required  for  Section  611(a)
boards is totally without merit.  In  JA’s  opinion,  the  author  has
failed in his burden to prove the existence of any error requiring the
need  for  a  potential  remedy.   With  regard  to  the   applicant’s
contention that the Air Force violated 10 USC 615  and  DoD  Directive
1320.12 by failing to issue written standard operating procedures,  as
a result of the requirements levied by the 4 Feb  92  version  of  the
Directive, the Air Force  rewrote  AFR  36-89  to  comply  with  those
requirements and published it on 17 Apr 92.   In  JA’s  opinion,  this
revised directive fully complies with DoD Directive and the fact  that
not every single procedure utilized by selection  board  personnel  is
described in detail does not impeach that  conclusion.   JA  disagrees
with the applicant’s allegation that the board president’s  duties  in
the Air Force promotion process violates DoD Directive  1320.12.   The
duties prescribed for board presidents  by  Air  Force  directives  do
require the president to perform several critical duties  relative  to
board scoring.  Those duties do not, however, violate any  statute  or
directive or constrain the board, in any manner, from recommending for
promotion the best qualified among the fully qualified officers  being
considered.  Moreover, the applicant has offered  no  proof  that  the
president of this or any Air Force  selection  board  has  ever  acted
contrary to law or regulation.

As to the applicant’s contention that the Air Force  promotion  boards
violate 10 USC 616 and 517, JA indicated  that  no  provision  of  law
exists that specifically requires each member of a promotion board  to
personally  review  and  score  the  record  of  each  officer   being
considered by the board.  It is clear that at  the  time  the  Defense
Officer Personnel Management Act (DOPMA)  was  enacted,  Congress  was
certainly aware  of  the  existence  of  promotion  board  panels  and
expressed no problem with them.  The language of  10  USC  616(a)  and
(c), the recommendation for promotion of officers by selection boards,
not just 617(a), the certification by a majority of the members of the
board, speaks to the corporate board and not  to  individual  members.
In essence, a majority of the board  must  recommend  an  officer  for
promotion and each member is required to certify  that  the  corporate
board has considered each record, and that the board members, in their
opinion, have recommended those officers who “are best  qualified  for
promotion.”  The members are not required to reach this point  through
an individual examination of every record, although they  may  do  so.
Notwithstanding the opinion cited in Roane v. U.S., two  other  judges
from the United States Court of Federal Claims  have  held  otherwise,
determining that the Air Force’s promotion system fully complies  with
the law (Small v. U.S. and Neptune v. U.S.).

The applicant bases his claim that his nonselection cannot be remedied
by Special Selection Board (SSB) consideration on  two  reasons:   (1)
the benchmark records that would be used in an SSB are invalid because
the original promotion boards that rendered them were illegal; and (2)
scoring  procedures  used  by  Air  Force  SSBs  are   arbitrary   and
capricious.  It is JA’s belief that the applicant has not  provided  a
meritorious application warranting the need for any  relief.   As  for
the merits of these claims, in  JA’s  opinion,  the  Air  Force’s  SSB
procedure fully comports with the 10 USC 628(a)(2) requirement that an
officer’s “record be compared with a sampling of the records of  those
officers of the same competitive category  who  were  recommended  for
promotion, and those officers who were not recommended for  promotion,
by the board that should have considered him.”  The burden is  on  the
applicant to prove otherwise, and he has failed to do so.

As to the  request  for  direct  promotion,  JA  indicated  that  both
Congress and DoD have made clear their intent that  errors  ultimately
affecting promotion should be resolved  through  the  use  of  special
selection boards.   Air  Force  policy  mirrors  that  position.   The
applicant competed at the CY95 and CY96 central selection boards  with
a “promote” recommendation and if, indeed, his record were truly  that
deserving, he could  have  —  and  would  have  —  been  selected  for
promotion.

JA stated that the applicant has failed to present  relevant  evidence
of  any  error  or  injustice  warranting  relief;   therefore,   they
recommended the application  be  denied.   A  complete  copy  of  this
evaluation is appended at Exhibit F.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

As he previously indicated, the contested OPR was written when Chanute
was in the final stages of closing and much of  his  duty  performance
was not accurately communicated on his OPR.  Additionally, his  senior
rater was no longer the commander of the Chanute Training Center.   As
a result of the errors on the contested report, his performance  based
potential was not accurately communicated to either his senior  rater,
the management level review (board) or  the  central  Major  selection
board.  AFPC does not dispute his comments that the “Impact on Mission
Accomplishment” (Section IV) is the most critical element of  an  OPR.
Nor does AFPC refute the obvious fact his current Jun 93 OPR does  not
show the actual impact of his many accomplishments  on  that  mission.
He asks the Board to rely on the  rater’s  statement  which  clarifies
this portion of his OPR.

AFPC has provided no evidence that disputes the MLR’s purpose  is  “to
recommend for promotion to the next higher permanent grade…officers on
the active duty list.”  He therefore asks the AFBCMR  to  upgrade  the
PRF he  received  for  the  CY  “94”  major  board  to  reflect  a  DP
recommendation.  Mere removal of the rating would be neither  thorough
or fitting relief, and with the illegal “Top Promote” systems,  simply
amending the PRF itself would not correct the underlying problem  that
it was the product of a patently illegal process.  In his petition, he
pointed out that the Air Force is  required  to  follow  the  law  and
higher level (DoD) directives.  AFPC indicated the  promotion  program
is an exception although it does not dispute the fact the courts  have
ruled, “[G]overnment agency is not at liberty to ignore its  own  laws
and that agency action in contravention  of  applicable  statutes  and
regulations is unlawful.  The military departments enjoy  no  immunity
from this proscription.”  Nor does AFPC apparently disagree  that  the
standard for interpretation is the “plain language”  of  the  statute.
For over a decade, the board president’s duties have been required  to
be prescribed by SAF.  For years,  Air  Force  selection  boards  were
required to use approved standard operating procedures for  all  board
operations including administrative  support.   AFPC  is  required  to
provide this Board with a copy of pertinent military  records  related
to  his  claim  -  it  has  provided  nothing,  confirming   its   own
contumacious regard  for  this  Board’s  authority.   Because  of  the
inefficacy of its position, AFPC/JA would have  the  Board  shift  the
burden to him to prove he was harmed by those  procedures.   He  would
remind the Board, however, that Sanders v. U.S. is quite clear when it
comes to promotion.  Therefore, the burden  rests  with  this  Board’s
advisors to prove - not to speculate  -  that  the  selection  process
complied with law.  In summary, the key to this case is the  “process”
by which selection boards operated.  AFPC would have the Board  accept
its unsupported, conclusory statements about this process - but it has
no documents.  AFPC has provided absolutely no proof  to  support  its
position that operating procedures and  guidelines  exist.   AFPC  has
provided no evidence to dispute his position; therefore, he asks  this
Board to set aside all promotion nonselections he received as a result
of this tainted, illegal process.

In his petition he pointed out the jurisdictional  requirement  of  10
USC, 616(c).  The requirements of 10 USC, 616(c) are  unequivocal:  “A
selection board may not recommend an officer for promotion unless  the
officer received the recommendation of a majority of  the  members  of
the board.”  The Roane court already answered this  question  for  the
Board when it ruled.  While the Air Force notes the decision in  Small
and Neptune “for” the  Air  Force,  conspicuous  by  omission  is  any
discussion of the basis  of  either.   The  reason  AFPC  declines  to
discuss these cases is simple:  The Court based its decision in  Small
and Neptune on operating procedures contained in the OSD review of the
Air Force promotion system.  He asks the Board to review the evidence,
and if it does, it can only conclude the Air  Force  selection  boards
which considered his file did  not  allow  board  members  either  the
knowledge of the officers recommended to make this  decision  nor  did
they allow a majority of the members of the board to form the required
consensus.  Therefore, the results of the boards  are  without  effect
and he asks the AFBCMR to set aside his nonselections at the illegally
held selection boards.

As with the lack of a finding, the Board can readily see the errors in
the Air Force “certification process” are certainly  “serious”  -  the
failure of a majority of the members of the board to certify  anything
- no list, not even the report itself - cannot be viewed  as  trivial.
The Board can see the errors in the Air Force  process  are  certainly
“directly related to the purpose and functioning of selection  boards”
- an attendance roster falls far short of  certification  of  results.
AFPC provides no information to prove these requirements  can  be  met
and in fact, the Board can  easily  see  the  ‘process’  denies  board
members the opportunity to comply with 10 USC, 617.

The evidence proves direct promotion is with  the  AFBCMR’s  authority
and that SSBs cannot provide a full,  let  alone  fitting  measure  of
relief.  Therefore, he  asks  the  AFBCMR  to  direct  his  record  be
corrected to reflect selection for promotion to major as  if  selected
by the CY95 Major Board.

He has provided additional information which further proves:  the mere
division of  the  population  produces  both  a  “distribution  error”
between or among panels at a selection board; and, the  division  also
precludes development of a majority  consensus  because  no  mechanism
exists to compensate for the different views of the board  members  at
the various panels.  The declarations provided by  a  Dr.  Daniele  C.
Struppa,  Associate  Dean  for  Graduate  Studies  at   George   Mason
University, proves that division of records at autonomous panels  will
produce different results than if the board as a  whole  reviewed  the
records.  In summary, the panel  system  simply  does  not  allow  the
majority consensus among board members to be developed.  He  asks  the
Board to weigh the additional information which proves once again  the
Air Force selection board process simply did not allow compliance with
statute(s), which required majority consensus  among  selection  board
members.  He again asks the Board to set aside  his  nonselections  at
these illegally held selection boards.

Applicant's complete response is attached 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.  After a thorough review
of the evidence of record and applicant’s extensive submission, we are
not persuaded the applicant should be provided the  requested  relief.
His  contentions  are  duly  noted;  however,  we  do  not  find   his
assertions, either singularly or collectively, sufficiently compelling
to override the rationale provided by the Air Force offices of primary
responsibility.  While we noted the statement provided by the rater of
the contested OPR, we were unpersuaded that the report in question was
not an accurate depiction of  his  performance  at  the  time  it  was
rendered.  We believe the applicant’s achievements were  appropriately
highlighted in the contested OPR and are unpersuaded by  the  evidence
that the rater was unaware of significant information.  In  our  view,
the statement from the rater represents  his  retrospective  judgment,
which is an insufficient basis to find the report was inaccurate  when
originally prepared.  With regard to the PRFs, we are  unpersuaded  by
the  evidence  presented  that  the  contested  PRFs  were  improperly
prepared or that the assessments  in  the  PRFs  had  their  bases  in
factors  other  than  the  applicant’s  demonstrated  performance  and
performance-based potential.  As to the request for direct  promotion,
having made the  determination  that  applicant  was  afforded  proper
promotion consideration, we find  no  basis  to  grant  him  a  direct
promotion.   The  applicant’s  numerous  assertions   concerning   the
statutory compliance of central selection boards, the legality of  the
promotion recommendation process, and the legality of the 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 Air Force offices of  primary  responsibility.   Therefore,  we
agree with the recommendations of the appropriate  Air  Force  offices
and adopt the rationale expressed as the basis for our  decision  that
the applicant has failed to sustain his burden of establishing that he
has  suffered  either  an  error  or  an  injustice.   Since  we   are
recommending denial of the above-mentioned requests, we find no  basis
exists to favorably  consider  his  requests  for  setting  aside  the
promotion nonselections to the grade of major.

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 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 2 Feb 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPEB, dated 26 Feb 98.
   Exhibit D.  Letter, HQ AFPC/DPPB, dated 27 Mar 98.
   Exhibit E.  Letter, HQ AFPC/DPPPA, dated 9 Apr 98.
   Exhibit F.  Letter, HQ AFPC/JA, dated 14 May 98.
   Exhibit G.  Letter, SAF/MIBR, dated 26 May 98.
   Exhibit H.  Letters from applicant, dated 24 Jun 98, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair