RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-03467
            INDEX NUMBER:  111.00, 131.10
                                131.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

The  “corrected  copy/certified  copy”  annotations  on  his   Officer
Performance Reports (OPRs) closing  31  March  1996,  31  March  1995,
31 March 1994, and 31 March 1993 be deleted.

The duty title on the OPR closing 31 March 1995 be changed to  reflect
“Protestant Chaplain” vice “Chaplain.”

His Promotion Recommendation Form (PRF) be ugpraded to  a  “Definitely
Promote” recommendation.

His nonselections for promotion by the Calendar  Year  (CY)  1996  and
1997 Major (Chaplain) Boards be declared null and void.

His records be corrected to reflect promotion to the grade of major as
if selected by the CY96 Major (Chaplain) Board.

His record be corrected to reflect continuous active  duty  since  his
illegal separation  that  was  based  on  promotion  nonselection,  to
include restoration of all pay, benefits, and any other entitlements.

___________________________________________________________________

APPLICANT CONTENDS THAT:

When his file was considered for  promotion  to  major,  it  contained
several errors in the OPRs which  were  included  in  his  “record  of
performance” (used in the PRF process) and in  the  officer  selection
folder (used by the central board).  Between boards  he  was  able  to
obtain a correction of the PME recommendation on  his  31  March  1995
OPR, but the Air Force Personnel Center (AFPC) declined to correct the
“corrected copy/certified copy” annotations on the 93, 94, 95, and  96
OPRs.  AFPC also declined to grant him Special Selection  Board  (SSB)
consideration.  As shown, there were no “major” corrections (by AFPC’s
definition) on any of these OPRs.  While he believes the correction of
the PME recommendation on the 31 March 1995 OPR was significant  (AFPC
does not), the “corrected by annotations”  clearly  implies  something
“major” was changed on the OPRs - not  just  the  closeout  dates  and
name.

The selection board procedures used by the boards which considered his
file were contrary to  law  and  DOD  Directive.   Each  violation  of
statute and directive was “not merely technical, formal,  or  trivial,
but serious, substantial, and directly  related  to  the  purpose  and
functioning of selection boards.”

The boards were instructed (illegally) to give  favored  treatment  to
females and minority officers.  This was  clearly  the  case  for  the
chaplain boards which considered his files.

An SSB cannot fairly assess his record for promotion status, first due
to the nature of the error on the original board (see Porter  v.  US).
And second, the same problems that plagued  the  original  board  also
plague the SSB process.  The score  system  does  not  allow  majority
consensus, and  even  SSB’s  are  “in  the  dark”  when  it  comes  to
certification of the results.

Applicant’s  complete  11-page  statement,  with  attachments,  is  at
Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

On 7 June 1984, applicant was appointed a first lieutenant, Reserve of
the Air Force, Chaplain, and Air National Guard of the  United  States
(ANGUS).  He was honorably discharged from the ANG on  31 March  1987,
and voluntarily ordered to extended active  duty,  effective  1  April
1987.  He served on continuous active duty, was  integrated  into  the
Regular component on 22 June 1993, and progressively promoted  to  the
grade of captain.

A resume of applicant’s OERs/OPRs follows:

     PERIOD CLOSING    OVERALL EVALUATION

       6 Jun 85 (Non-EAD)    1-1-1
       6 Jun 86 (Non-EAD)    1-1-1
      31 Mar 87 (Non-EAD)    1-1-1
      30 Sep 87  1-1-1
      31 Mar 88  1-1-1
      31 Mar 89  Meets Standards (MS)
      31 Mar 90  MS
      31 Mar 91  MS
      31 Mar 92  MS
  *   31 Mar 93  MS
  #   31 Mar 94  MS
  **  31 Mar 95  MS
  ##  31 Mar 96  MS
  *** 31 Mar 97  MS
       1 Jan 98  MS

* Contested report.  Report was administratively corrected on  1 April
1997 to correct the period of the report.

# Contested report.  Report was administratively corrected on  1 April
1997 to correct the period of the report.

** Contested report; administrative correction was made to the  report
on 1 April 1997 correcting the period of the report.   The  Evaluation
Report Appeal Board (ERAB) approved applicant’s request to change  the
PME recommendation from “Squadron  Officer  School”  to  “ACSC.”   The
report was administratively corrected 17 Dec 1997.

## Top report in file when considered and not selected  for  promotion
by the CY96B Major (Chaplain) Board which  convened  on  17 Jun  1996.
Report was administratively corrected on 1 April 1997 to  correct  the
period of the report.

*** Top report in file when considered and not selected for  promotion
by the CY97B Major (Chaplain) Board, which convened on 2 June 1997.

On 31 January 1998, applicant was honorably discharged  by  reason  of
nonselection for permanent promotion.

___________________________________________________________________

AIR FORCE EVALUATION:

The Chief  of  Operations,  Selection  Board  Secretariat,  AFPC/DPPB,
provided comments addressing the selection board process.  DPPB stated
that board members are briefed to try to  apply  a  7.5  score  to  an
“average” record and to try to use the entire scoring range throughout
the evaluation process.  Recognizing that the scoring of records is  a
subjective process, it should come as no surprise that individuals may
have a slightly different definition of what constitutes an  “average”
record.  Additionally, history has revealed that a given board  member
may be a more liberal scorer than  other  board  members  and  have  a
higher distribution of scores, i.e., from 7 to 10.  On the other hand,
a given board member may be a more  conservative  scorer  and  have  a
distribution of scores from 6 to 9.  In either of these examples a 7.5
score would not likely be the “average” record.  As long as each board
member applies their individual standard consistently  throughout  the
scoring process,  each  consideree  will  get  a  fair  and  equitable
evaluation.  Only when two or more board members score the same record
with a variance of two or more points, i.e., 7 and 9  or  7  and  9.5,
does a significant  disagreement  occur  and  through  discussion  the
variance is resolved, i.e., less than two points variance.

Applicant’s allegation “that the boards were instructed (illegally) to
give favored treatment to females and minority  officers”  is  without
merit.  The guidance to the applicable boards directed  board  members
to give a fair and equitable evaluation to every eligible officer.

The complete evaluation is at Exhibit C.

The Evaluation Programs  Branch,  AFPC/DPPPE,  recommended  denial  of
applicant’s request for an upgrade  of  his  promotion  recommendation
from a “Promote” recommendation to  a  “Definitely  Promote.”   Noting
applicant’s contention that since the major command (MAJCOM)  Chaplain
was present  at  the  Management  Level  Review  (MLR)  he  had  undue
influence on the process, DPPPE stated that the applicant provides  no
proof or evidence that an error or injustice occurred.  The philosophy
behind having non-line competitive category representatives at the MLR
is to assist line officers with information about  the  proper  career
progression of non-line officers.  This is not only for  the  chaplain
corps but for other competitive categories as well.  The applicant  is
correct in stating that a letter is not allowed to be reviewed in  the
MLR.  However, senior raters do have the opportunity  to  discuss  the
officer’s record of performance during the MLR.  The  applicant  could
have brought any discrepancies to the attention of  his  senior  rater
prior to the MLR.  The applicant’s PRF is the  responsibility  of  his
senior rater.  Unless proven otherwise, DPPPE  considers  it  and  the
recommendation an accurate  reflection  of  the  officer’s  record  of
performance.  Furthermore, the applicant has not provided support from
his senior rater or the MLR president.  (Exhibit D)

The Promotion, Evaluation & Recognition Division, AFPC/DPPP,  reviewed
this application  and  recommended  denial  of  applicant’s  requests.
Their comments, in part, follow.

A similar application was  submitted  under  AFI  36-2401,  Correcting
Officer and Enlisted Evaluation Reports.  The Evaluation Report Appeal
Board (ERAB) granted partial relief to the applicant by directing  the
professional military education (PME) recommendation on the  31  March
1995 OPR be  corrected  to  reflect  “ACSC”  (Air  Command  and  Staff
College).  The ERAB did not believe the correction warranted promotion
reconsideration since “the additional rater...made the  recommendation
for ACSC on the following ’96 OPR.”  The ERAB denied the remainder  of
the applicant’s requests.  DPPP concurs with the ERAB’s assessment.  A
copy of the decision letter, dated 19 Dec 97, from  HQ  AFPC/DPPPA  is
included with the applicant’s appeal package.

Noting applicant’s request that the  “corrected  copy/certified  copy”
annotations be removed from the four contested OPRs, DPPP stated  that
with the exception of the addition of the PME recommendation  addition
to the Mar 95 OPR, the remainder of the contested OPRs had changes  to
the closeout  dates  and  name.   The  applicant  is  correct  in  his
statement  that  the  correction  annotations  are  removed  from  the
documents which are appealed  provided  that  individual’s  record  is
being considered by an SSB.  If the applicant had been granted an  SSB
based on the correction to his  Mar  95  OPR,  his  officer  selection
record (OSR) would have been copied for the SSB consideration, and the
correction statement would have been removed from the copy of the  Mar
95 OPR for SSB purposes only.

AFR  36-2401,  Table  4,  Note  2,  gives  specific  instructions  for
annotating corrections on evaluation reports.  However, the  applicant
does not believe these procedures afford him “complete”  relief.   The
“new” procedure of annotating “corrected copy” on the reverse side  of
the document went into effect with the 1 Aug 97  edition  of  AFI  36-
2401.  As  such,  the  31  Mar  95  OPR  was  appropriately  annotated
following the applicant’s successful appeal to add  a  PME  statement.
DPPP noted that the administrative corrections made to the 31 Mar  93,
31 Mar 94, 31 Mar 95, and 31  Mar  96  OPRs  by  HQ  AFPC/DPBBR3  were
appropriately annotated on 1 Apr 97 in accordance with the  3  Jun  94
edition of AFI 36-2401.  Therefore, if the Board decides in  favor  of
the applicant and grants promotion reconsideration by  the  CY96B  (17
Jun 96) board, the correction statements  will  be  removed  from  the
copies  of  the  contested  OPRs  only  since  the  corrections   were
accomplished  after   the   original   board   date.    If   promotion
reconsideration is granted for the CY97B (2 Jun 97)  board,  the  only
correction statement that will be removed will be from the copy of the
31 Mar 95 OPR since it was corrected subsequent to the original  board
date.

DPPP  believes  it  is   vitally   important   that   the   “corrected
copy/certified copy” annotations  remain  on  the  contested  reports.
They do not support promotion reconsideration on this issue.

In regard to applicant’s request to  change  the  duty  title  on  his
31 Mar 95 OPR  to  reflect  “Protestant  Chaplain,”  DPPP  stated  the
applicant has not provided any supporting documentation to verify  the
duty title is incorrect.

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 either the  CY96B
or CY97B boards, DPPP believes a duly constituted board  applying  the
complete promotion criteria is in the most  advantageous  position  to
render this vital determination.  The Board’s  prerogative  to  do  so
should not be usurped except under extraordinary circumstances.  Other
than his own opinions, the applicant has provided no substantiation to
his allegations.

The complete evaluation is at Exhibit E.

The Staff Judge Advocate, AFPC/JA, recommended denial  of  applicant’s
request.  Their comments, in part, follow.

With  respect  to  applicant’s  contentions  concerning  the   alleged
defective selection record and PRF process, JA can  discern  no  legal
issue(s) and defers to the  advisories  furnished  by  AFPC/DPPPA  and
DPPPE.  As  to  the  allegations  that  the  applicant’s  two  central
selection boards were  conducted  in  violation  of  statute  and  DOD
Directive, applicant’s brief begins with a new  twist  on  a  familiar
contention that Air Force promotion boards violate 10 USC 616 and 617.
 In a unanimous decision, the Court of Appeals for the Federal Circuit
held that the Air Force’s use of panels complies  with  the  statutory
requirements of 10 USC 616 and 617.  Small v. United States,  _F.3.d_,
1998 WL712948, No. 97-5074 (Fed. Cir. 1998) (appealed from 37  Fed.Cl.
149 (1997)).  The Court, in  affirming  the  decision  of  the  United
States Court of Federal Claims below, emphasized that:

      The Air Force, like the  other  branches  of  the  military,  is
      confronted with establishing a  selection  process  pursuant  to
      statute that  is  fair  in  view  of  the  extensive  number  of
      individual officers who may be eligible  for  consideration.   A
      review of a selected number of individuals by sub-panels who use
      common and identifiable criteria is an efficacious and equitable
      means to establish the final rankings that are in fact  approved
      by a majority of the members of the board.

The Court then went on to agree with the trial court’s conclusion that
“[t]here is...no reason why the business of  coming  to  a  ‘majority’
consensus cannot be accomplished through collective  approval  of  the
findings and recommendations of a sub-group-i.e., a  selection  panel.
Small, 37 Fed.Cl. at 156.”

Finally, the Court concluded, “using the signing of the  Board  report
as a means for the members to  both  express  their  approval  of  the
recommended  candidates  and  make  the  required   certification   as
permissible under the statutory scheme as well.”  In that regard,  and
contrary to applicant’s contentions, the Court was fully aware of  the
Air  Force’s  board  procedures  when  it  made  its  decision;  those
procedures were fully briefed and discussed during  oral  argument  in
the Small litigation.  The applicant’s  opinion  that  “the  evidence”
proves that the procedures do not comply with either the  law  or  the
Court’s holding ignores the evidence of record and is utterly  without
merit.

Applicant maintains that the  promotion  boards  that  considered  him
provided illegal favored treatment to female  and  minority  officers.
Following  a  discussion  of  the  language  in  the   Memorandum   of
Instructions used at the applicant’s selection boards, JA opined  that
the formal charge to the CY96 and CY97 major boards did not  afford  a
preference based upon race or gender, but was  neutral  on  its  face;
i.e., it did not establish a goal or quota  or  otherwise  provide  an
incentive to treat officers unequally based upon their race or gender.
  Therefore,  as  a  matter  of  law,  it   did   not   constitute   a
“classification” for purposes of equal protection analysis.  The  mere
admonition that the members of the promotion  board  “be  particularly
sensitive  to  the  possibility  that  past  individual  and  societal
attitudes, and in some instances utilization  policies  or  practices,
may have placed these officers at a disadvantage from a  total  career
perspective” did not direct this board to  make  selections  upon  the
basis of race or gender.  As the trial court determined  in  Baker  v.
United States, 34 Fed.Cl.645, (1995) (the SERB case alluded to above),
“the language at issue merely asked members of the board  to  keep  in
mind, as one of a host of subjective considerations,  the  possibility
that some minority officers might have undergone different experiences
....  Ultimately, the questionable provision of the charge was nothing
more than a hortative  comment,  advice  or  reminder.   It  does  not
constitute  a  racial  classification  subject  to  strict  scrutiny.”
34Fed.Cl. at 656.

As to the request for direct promotion, they cannot address this issue
without first reiterating their strong belief that the  applicant  has
not provided a meritorious application warranting  the  need  for  any
relief.  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 complete evaluation is at Exhibit F.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant stated that as his application is certainly within less than
three years of his separation, that the Board reject the AFPC comments
about “time-bar” and consider his full case on the merits.

Applicant stated that AFPC hasn’t annotated OPRs on the  “side”  since
late 1997.  Applicant questions why his OPRs  were  not  corrected  as
required by the regulation.

He reiterated his contention that his  duty  title  on  the  1995  OPR
should reflect “Protestant” chaplain vice chaplain.  He asks the Board
to look at the duty description of this OPR and the OPR preceding  and
following it.  Each details his duties as a “Protestant” chaplain.

Applicant contends that the message AFPC used to “announce” its change
in PME selection rules wasn’t sent to senior raters, let alone raters.
 None of them knew.  The reason is that AFPC never told them  or  told
the few addressees of their message to “get the word out.”  Therefore,
he requests that the Board at least grant MLR  and  SSB  consideration
for promotion.  If the MLR process cannot be replicated -  which  AFPC
acknowledges - he requests that the  Board  direct  his  promotion  to
major as if selected by the CY96 chaplain major board.

Applicant reiterated his contentions that the boards which  considered
his file were contrary to law and DOD Directive.

Applicant’s  complete  14-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.  In this regard, we note that:

      a.  Other than the applicant’s assertions, no evidence has  been
presented showing that the annotations “corrected copy/certified copy”
on the OPRs closing 31 March 1996, 31 March 1995, 31 March  1994,  and
31 March 1993, were contrary to the governing regulation in effect  at
the time, that they were improperly filed in the applicant’s  records,
or that he was  treated  differently  than  other  similarly  situated
officers.  In addition, the applicant has not presented  any  evidence
that would lead us to believe that the  contested  annotations  caused
his records to be so inaccurate or misleading that the members of  the
duly constituted boards, both the  Management  Level  Review  and  the
central selection boards, 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 requests to delete the annotations from the  contested
reports,   upgrade   his   Promotion   Recommendation   Forms   (PRFs)
recommendations to “Definitely Promote,” and direct his  promotion  to
the grade of major.

      b.  The applicant requests  that  the  duty  title  on  the  OPR
closing 31 March 1995 be changed  to  reflect  “Protestant  Chaplain.”
However, after careful consideration  of  the  evidence  provided,  we
found  that  the  applicant  has   failed   to   provided   supporting
documentation substantiating his contentions that the  contested  duty
title is in error.  Accordingly, his request to change the duty  title
is not favorably considered.

      c.  Applicant’s numerous contentions  concerning  the  promotion
recommendation process, the statutory and regulatory compliance of the
central selection boards and the Special Selection Board process,  and
alleged favored treatment toward females and minority officers by  the
boards that considered him for promotion, are duly noted.  However, we
do not find these  assertions,  in  and  of  themselves,  sufficiently
persuasive to override the rationale expressed 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 for our decision that the applicant has failed  to  sustain  his
burden of establishing that he has suffered  either  an  error  or  an
injustice.

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 23 September 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 10 Dec 98, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPB, dated 26 Jan 99.
    Exhibit D.  Letter, AFPC/DPPPE, dated 26 Feb 99.
    Exhibit E.  Letter, AFPC/DPPP, dated 8 Mar 99, w/atchs.
    Exhibit F.  Letter, AFPC/JA, dated 20 Apr 99.
    Exhibit G.  Letter, SAF/MIBR, dated 10 May 99.
    Exhibit H.  Letter from Applicant, undated, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair