RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  95-00115 (Case 3)
            INDEX CODE:  111.01, 131.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________


APPLICANT REQUESTS THAT:

1.  His Officer Performance Report (OPR), closing  15  April  1993  be
replaced with the reaccomplished OPR provided.

2.  His Promotion Recommendation Form (PRF) for the CY93A  (12 October
1993) Central Lieutenant Colonel Board (P0593A) be replaced  with  the
reaccomplished  PRF  provided.   The  replacement   PRF   contain   no
“Corrected Copy” annotations as well as a Review Group  Size  of  “NA”
rather than the regulatory-directed “1.”

3.  His PRF for the CY94A (11 October 1994) Lieutenant  Colonel  Board
(P0594A) be upgraded to a “Definitely Promote” recommendation.

4.  His nonselection for promotion  to  lieutenant  colonel  beginning
with the CY93A Central Lieutenant Colonel Boards be declared null  and
void.

5.  His records be corrected to show he was promoted to the  grade  of
lieutenant colonel as if selected  by  the  CY93A  Central  Lieutenant
Colonel Board, which convened on 12 October 1993, to include award  of
back dated date of rank.

6.  In the alternative, he be considered for promotion  to  lieutenant
colonel by a Special Selection Board (SSB) for the CY93A  (12  October
1993) and CY94A (11 October 1994) Lieutenant Colonel Boards.

By amendment, the applicant accepts the corrective actions proposed by
HQ AFPC/DPPPA (Exhibit H) as follows:

1.  His OPR closing 15 Apr 93 be replaced with the reaccomplished  OPR
provided.

2.  His P0593A PRF be corrected and the review group  size  be  marked
“N/A.”

3.  The “corrected by” annotations be “hidden” from the board.

4.  He be considered for promotion to lieutenant colonel by an SSB for
the CY93A (12 Oct 93) Lieutenant Colonel  Board,  with  his  corrected
record.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His record was incorrect when  he  was  considered  for  promotion  to
lieutenant colonel (Lt Col).

Omission of the fact that he had been selected for  the  Air  Mobility
Command (AMC) squadron commander program on the contested OPR  created
an inaccurate record of performance for users of the OPR.

The PRF for the P0593A board is erroneous since his senior  rater  was
not aware of several accomplishments as well as the fact that  he  was
on the AMC Squadron Commander list when his PRF was written.  Both his
senior rater and Management Level Evaluation  Board  (MLEB)  president
concur with amendment of the PRF.

Applicant also contends his P0594A PRF was erroneous due to  the  fact
that when he was nonselected for promotion he  was  removed  from  the
squadron commander list which further tainted his P0594A PRF.

The Air Force officer promotion boards which  considered  his  records
for promotion were held in violation of statute, DoD Directive and Air
Force regulations.  An SSB cannot resolve his promotion  status.   Not
only are the benchmark records tainted  by  the  illegalities  of  the
original  boards,  the  scoring  procedure  itself  is  arbitrary  and
capricious, as it imposes a higher standard for SSB selection than for
original board selection.  Therefore, he asks that the  AFBCMR  direct
his promotion to lieutenant  colonel  as  if  selected  by  the  CY93A
Lieutenant Colonel Selection Board.

In support of his request, applicant  submits  a  personal  statement,
with the reaccomplished OPR and CY93 PRF, statements from  his  rating
chain and the MLEB president, and additional documents associated with
the issues cited in his contentions (Exhibit A).
_________________________________________________________________

STATEMENT OF FACTS:

The applicant had prior active duty service as an officer in  the  Air
Force Reserve from 28 August 1972 until 1 August 1976, at  which  time
he was transferred to the Air Force Reserve  Officer  Reserve  Section
(ORS).  On 28 August 1978, the applicant was  reassigned  to  the  Air
Force Reserve Inactive Status List Reserve Section (ISLRS).

The applicant was selected by the 18-21 January 1982 Voluntary Reserve
Officer Recall Board for return to extended active duty.  On  13  June
1982, the applicant was ordered to active duty in the grade of captain
for an indefinite period in accordance with 10  USC  672(d).   He  was
integrated  into  the  Regular  Air  Force  on  1 June  1983  and  was
progressively promoted to the grade of major,  effective  and  with  a
date of rank of 1 May 1989.

The applicant appealed twice under AFI 36-2401.  On 9 August 1994, the
Evaluation Report Appeal Board (ERAB) returned the  first  application
because the reaccomplished PRF was signed by a different senior rather
than the original.  The  ERAB  denied  the  subsequent  appeal  on  11
October 1994.

The following is a resume of applicant’s OPR ratings subsequent to his
promotion to the grade of major:

            Period Ending    Evaluation

                 15 Apr 90   Meets Standards (MS)
                 15 Apr 91       MS
                 15 Apr 92       MS
             * # 15 Apr 93       MS
               ##15 Apr 94       MS
                 15 Apr 95       MS

*  Contested OPR

# Top report at  the  time  he  was  considered  and  nonselected  for
promotion to  lieutenant  colonel  by  the  CY93A  Central  Lieutenant
Colonel Board, which convened on 12 October 1993.

## Top report at the  time  he  was  considered  and  nonselected  for
promotion to  lieutenant  colonel  by  the  CY94A  Central  Lieutenant
Colonel Board, which convened on 11 October 1994.

On 30 June 1995, the applicant  was  relieved  from  active  duty  and
retired effective 1 July  1995  in  the  grade  of  major,  under  the
provisions of  AFI  36-3203  (voluntary  retirement:  temporary  early
retirement authority).  He served a total of 16 years, 10  months  and
18 days of active service for retirement.
_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Evaluation Boards Section, HQ AFMPC/DPMAJEB, addressed  the
technical  aspects  of  this  case.   DPMAJEB  stated  that   specific
information was not contained in his PRF,  particularly  that  he  was
selected as a squadron commander candidate by the  AMC  Phoenix  Eagle
board.  Senior raters must have knowledge of or access to knowledge of
eligibles.  This information  can  be  derived  from  the  records  of
performance (ROPs) which contains OERs, OPRs, Training Reports  (TRs),
and Letters of Evaluation (LOEs).  When the CY93 PRF was written,  the
senior rater had access to this information.  Omission of  a  specific
accomplishment does not constitute noncompliance  with  regulation  or
technical  error.   DPMAJEB  has  reviewed  the  contested   PRF   and
determined that it was completed according to the directive and is  in
compliance  with  all  regulatory  requirements.   With  reference  to
Section IV of the application, the  applicant  stated  corrected  PRFs
have a Review Group Size of "1" on the PRF but  "there  is  no  direct
reference to this 'procedure' in AFR 36-10."  Review  Group  Size  for
PRFs resulting from a change in eligibility status resulting from  SSB
or AFBCMR actions are specifically addressed in AFR 36-10, para  4-23,
which states a "1" will be entered for IPZ officers.

DPMAJEB stated that  the  applicant's  senior  rater  and  MLEB  board
president have provided support; however, they have not complied  with
all the requirements of AFI 36-2401, as the member states  in  Section
III of his request.  The senior rater failed to detail the  method  by
which the "DP" rating would have been originally awarded and the  MLEB
president has not stated the corrected record is  sufficiently  strong
enough to award a DP  and  make  the  appropriate  recommendation.   A
review of the Management Eligibility  Listing  (MEL)  from  the  CY93A
board shows that the senior rater had nine In-the-Promotion Zone (IPZ)
eligibles with a "DP" allocation rate of 40 percent, which resulted in
three "Definitely Promote"  recommendations.   The  senior  rater  did
award three "DPs", but he has not indicated that one  of  these  would
have been awarded to the applicant or that he would have competed  for
a "DP" in aggregation or carry over.  The applicant states in his case
file that the MLEB president has confirmed that he would have received
a "Definitely Promote" recommendation.  This is not fully supported in
the senior rater’s statement in which he  refers  to  applicant  being
selected into the AMC Phoenix Eagle program and this selection, "Could
have  made  a  difference  in  the  outcome  of  his  promotion  board
standing.”  When a report is  rendered  it  is  considered  to  be  an
accurate and objective assessment.  We  have  reviewed  this  PRF  and
determined that it was completed according to the directive and is  in
compliance  with  all  regulatory  requirements.   The   documentation
presented by the applicant does not dispute the fact that this  report
was an accurate  assessment  when  rendered,  and  the  changes  being
requested are post rating assessments following  nonselection  by  the
promotion board.  AFR 36-10, para 49a(6) says the  senior  rater  will
provide the ratee a copy of the PRF approximately 30 days  before  the
central selection board.   If  the  ratee  believed  this  report  was
inaccurate, unjust or prejudicial, a letter concerning  these  matters
could have been forwarded to the central selection  board.   Applicant
also requested that his  P0594A  PRF  be  upgraded  to  a  "Definitely
Promote" recommendation; however,  there  was  no  PRF  or  supporting
documentation  included  with  this  appeal  package  to  support  his
request.  Therefore, this issue was not addressed by this office.

DPMAJEB recommended that the applicant's request should be  denied  at
this time.  In their opinion, applicant has not  provided  substantial
evidence to overcome the presumed validity of  the  PRF  when  it  was
written.  The  applicant  has  been  treated  fairly  by  the  officer
evaluation system.  The applicant needs to first of all  have  the  19
Apr 93  OPR  appealed  and/or  corrected  to  accurately  reflect  his
selection to the Phoenix Eagle board.  If the applicant is  successful
in appealing his OPR, DPMAJEB would reconsider his appeal for the CY93
and CY94 PRFs to be reevaluated for upgrade, as long as the  applicant
follows  proper  appeal  procedures.   If  the  Board   does   approve
replacement of the PRF, it is their  recommendation  that  applicant's
request for Review Group Size change be disapproved.

A complete copy of this evaluation is appended at Exhibit C.


The Chief, Selection Board Secretariat, HQ  AFMPC/DPMAB,  stated  that
the applicant argues that the board administratively violated 10  USC,
Chapter 616, by using a panel to score records.  He  alleges  that  "a
majority of the members of the board are never queried to develop  the
consensus required by statute."  The Air Force has  organized  central
selection boards into panels for many years and the procedure has been
reviewed again by HQ USAF/JAG as late as February 1992,  and  AFMPC/JA
in May 1994.  The panel concept has  safeguards  to  ensure  an  equal
distribution of the quality spectrum of records to each  panel.   When
more than one panel scores  a  given  competitive  category,  all  the
eligible  records  are  aligned  in  reverse  social  security  number
sequence and then distributed in groups of 20 records to  each  panel,
i.e., records 1 through 20 to panel one, 21 through 40 to  panel  two,
41 through 60 to panel three, etc.  As each panel scores its share  of
records, an order  of  merit  (OOM)  is  formed.   One  of  the  major
responsibilities of the board president is to  review  the  orders  of
merit to ensure consistency of scoring on each panel  and  consistency
of quality among panels.  To do this, the board president does quality
review of records for each OOM in and around where the selection  rate
falls.

DPMAB disagrees with the applicant’s comments concerning  the  scoring
system used by central selection boards and offers  his  opinions  and
interpretations.  DPMAB stated that the scoring scale - from 6  to  10
in half point increments -- has been used successfully for many years.
 To ensure its success, a split resolution process is used.   A  split
occurs when two or more panel members assign record  scores  that  are
greater than a point and a half  different.   When  this  occurs,  the
record is brought back to the  panel  to  resolve  the  difference  of
opinion.  This process ensures that one or two  officers  on  a  given
panel do not have a disproportionate  amount  of  influence  over  any
particular record.

As to the applicant’s  allegation  that  the  selection  board  report
violated 10  USC,  Chapter  617,  DPMAB  stated  that,  as  previously
referenced, in February 1992 the USAF/JAG reviewed both 10 USC 616 and
10 USC Section 617 and determined that the selection board  procedures
comply with the applicable provisions of statute and policy.

DPMAB disagrees with the applicant’s allegation that the  board  which
considered him for promotion was illegal because separate boards  were
not held for  each  competitive  category.   DPMAB  stated  that  DODD
1320.12  clearly  states  "Selection  boards  convened  for  different
competitive categories or grades may be  convened  concurrently,"  and
"When more than one selection board is convened to recommend  officers
in different competitive  categories  or  grades  for  promotion,  the
written reports of the promotion selection boards under 10 USC 617 may
be consolidated into a single package  for  submission  as  prescribed
under 10 USC 618."

DPMAB disagrees with the applicant’s opinions and  interpretations  on
the responsibilities of the board president.  DPMAB  stated  that  the
responsibilities of the board president are addressed in AFR 36-89 and
the Memorandum of Instructions to the board from the Secretary of  the
Air Force.  The  board  president  for  the  CY93  Central  Lieutenant
Colonel Selection Board performed his duties in accordance with  those
directives.

The applicant further alleges that the special selection  board  (SSB)
process is illegal since the  original  central  boards  are  illegal.
DPMAB stated that since the applicant’s first  accusation  is  without
merit, so is his second.  Regarding  applicant’s  comments  about  the
selecting of benchmark records, it has already been pointed  out  that
the quality of records in each gray zone is identical.  In view of the
policy of selecting 10 benchmark records  (5  selects,  5  nonselects)
when possible, it is practical to select the benchmarks from  a  panel
that has an ample number of records in its gray zone,  i.e.,  a  panel
with 40-50 records in its gray zone and needing to  select  20-25  for
the final quotas is far better than using a panel selecting 4 of 9 out
of its gray.  Nonetheless, if each panel had a  similarly  small  gray
zone, selection of the benchmark records could be  a  collection  from
all panels and would be completely acceptable.  It should be noted the
numerical scores from the original board have nothing to do  with  the
numerical scores given to the benchmark records by an  SSB,  only  the
select/nonselect  status  of  the  benchmark  records  is   important.
Because the benchmark records are very similar in quality (having come
from the same score category of the original board), 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.

A complete copy of this evaluation is appended at Exhibit D.


The Chief, Promotion, Evaluation & Recognition Division, HQ AFPC/DPPP,
stated that all the evaluators on  the  contested  OPR  have  provided
letters of support to replace the report with  a  reaccomplished  OPR.
DPPP indicated that all three individuals say they  were  unaware  the
applicant had been selected as an AMC (Air Mobility Command)  squadron
commander candidate.  However, none of these individuals  explain  why
they  were  unaware  of  this  fact,  considering  that  the   message
announcing  the  applicant's  selection  was   addressed   to   AMC/XR
(Directorate of Requirements).  Each of the evaluators was assigned to
the AMC/XR, so it is apparent the information was available to each of
the evaluators. DPPP is not convinced the rating  chain's  support  is
anything other than an attempt to recreate history.

DPPP’s assessment of the P0593A PRF replacement issue is the  same  as
for the contested OPR.  Both the senior rater (reviewer  on  the  OPR)
and the Management Level Evaluation Board (MLEB) president were in the
AMC list of addressees  on  the  message  announcing  the  applicant's
selection as an AMC squadron commander candidate.

DPPP stated that the applicant's request to upgrade the P0594A PRF  is
totally without merit.  He has no support from the  senior  rater  and
MLEB president to upgrade.  The P0594A PRF would still be for an above-
the-promotion zone (APZ)  consideration,  and  the  criteria  for  AMC
squadron commander candidacy for majors is that the candidate be  "not
deferred to lt col.”  Regardless of whether any other portion of  this
appeal is successful, the applicant's status for the  P0594A  (11  Oct
94) board would remain unchanged--he would still be once deferred  for
promotion to lieutenant colonel, and would  still  have  been  removed
from the list of AMC  squadron  commander  candidates  based  on  that
deferment.

DPPP stated that the applicant's requests for  the  PRF  review  group
size to be "NA” instead of "1" and for the "corrected copy"  statement
to not be annotated on the OPR and PRF if they are corrected by  Board
action are also without merit.  As stated in HQ AFMPC/DPMAJEB's 3  Mar
95 advisory, the requirement to the review group size  to  be  "1"  is
specifically addressed in AFR 36-10 and the requirement  to  type  the
"corrected copy" annotation is in accordance with AFI  36-2401.   DPPP
indicated that for SSBs conducted since 9 Sep 92, the "corrected copy"
annotations have been masked (deleted) from corrected reports for  the
SSB process; therefore, the applicant's concerns  on  this  issue  are
unfounded.

DPPP stated that while the applicant speculates his OPR and  PRF  were
erroneous and therefore the board  considered  erroneous  information,
that is not the case.  The space for written information on  both  the
OPR and PRF is limited.  The OPR and PRF  did  not  contain  erroneous
information, they just did not contain the information  the  applicant
believes should have been included on  the  reports.   DPPP  indicated
that it is the  rating  chain,  not  the  ratee  who  determines  what
information is included on an OPR or PRF.  The message announcing  the
applicant's selection as an AMC squadron commander candidate was  sent
to the rating chain in November 1992.  The fact that they chose not to
include that selection on the May 93 OPR and the P0593A PRF  does  not
invalidate these reports.

A complete copy of this evaluation is appended at Exhibit E.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and  indicated  that  his
evaluators  did  not  know  of  his  selection  as  an  AMC  potential
commander, and each has confirmed  that,  had  this  information  been
known it would have been included in the OPR.  AFMPC and board members
acknowledge the presence of this information would have been important
both in the PRF process and at the central board.  He  therefore  asks
the Board  to  direct  replacement  of  the  contested  OPR  with  the
reaccomplished report.

Both his senior rater and MLEB president concur with amendment of  the
CY93 PRF -- the ‘standard’ of support needed to justify replacement of
the PRF.  He asks the Board to direct the contested  PRF  be  replaced
with the reaccomplished PRF.  To provide a full measure of relief,  he
asks the Board to direct complete correction of  his  PRF;  i.e.,  the
Group Size be marked  as  “N/A”  and  corrected  copy  annotations  be
removed from any PRF reconsidered by a board of officers.

He stated that as the evidence clearly indicates, the CY93 PRF was  in
error.  As a result of his nonselection at the CY93 Lt Col  Board,  he
was denied the opportunity to continue to progress  into  a  commander
job.  He asks  the  Board  to  upgrade  the  CY94  Lt  Col  PRF  to  a
“Definitely Promote.”  While AFMPC claims he has provided  no  support
from his senior rater or MLEB president to support correction of  this
report, they do not dispute the facts that he was not able to compete.
 This is another compelling reason to provide full and fitting  relief
by both correcting his PRF and directing his promotion to the grade of
Lt Col.

He indicated that the selection boards which considered his file  were
held in violation of statute and DoD  directive.   Each  violation  of
statute and directive involved a specific provision designed to afford
him a certain element of ‘protection’ by requiring specific procedures
to ensure selection boards  operate  fairly.   The  evidence  provided
clearly proves a ‘fair lottery’ was not held.  He stated that case law
is quite clear that violation of the minimum due process  requirements
of  law  dictate  that  the  results  of  such   illegally   conducted
proceedings are without effect and  must  be  set  aside.   Since  the
evidence clearly proves, deliberate, systemic violation of  his  basic
rights guaranteed by statute and  directive,  he  therefore  asks  the
Board to set aside the nonselections  he  received  at  the  illegally
conducted 1993 and 1994 Lieutenant Colonel Boards.

AFMPC has admitted  the  only  sources  for  the  role  of  the  board
president is AFR 36-89 and the SAF Memorandum  of  Instruction  (MOI),
although  many  key  procedures  are  not  found  there.   They   have
effectively admitted failure to comply with DoDD 1320.12  requirements
by acknowledging these omissions.  The 'new procedures’ used  for  the
CY94 Board were never incorporated into this regulation nor have  they
been approved  by  DoD.   In  view  of  the  admitted  and  deliberate
violation of 1320.12 requirements, he asks the  Board  to  direct  his
promotion to the grade of Lt Col as if selected by  the  CY93  Lt  Col
Board.  In view of the total disregard  by  Air  Force  officials  for
higher level directive and the law, only the AFBCMR can intervene  and
grant full and fitting relief.

He believes the evidence in his case is clear.  An SSB  cannot  fairly
assess his record for promotion.  Had it not been for  errors  in  his
OPRs and PRF, he would have been  selected  by  the  original  central
board.  Note AFMPC did not provide any details about the impact of the
illegal Below-the-Promotion  Zone  (BPZ)  offset  procedures  although
these procedures illegally ‘took away’ 7.5% of the BPZ  quota.   Note,
too, these procedures were changed for the 1994 board,  and  he  finds
these ‘new’ procedures are not documented in the current AFR 36-89 nor
the SAF/MOI as AFMPC would  have  the  Board  believe.   As  with  the
discussion of 10 USC, Sections 616 and 617, he finds AFMPC provides no
insight into how findings are developed without a yes/no vote, or  how
certification is completed without a list.  Nor do  they  dispute  his
assertion that the  scoring  procedures  were  developed  to  minimize
selections.  The evidence proves that his record  was  defective  when
considered by the original CY93 and 94 Lt Col Boards and the CY93  and
94 Management Level Evaluation Boards.  As a result  of  this  tainted
file, he was not able to compete for a “Definitely Promote” or a  “Top
Promote” which were  all  based  upon  a  faulty  record  and  illegal
procedures.

He requested additional documents, under the provisions of the Freedom
of Information Act (FOIA), which had been used by AFPC  in  developing
their  positions  on  his  case.   The  response  he  received  proves
virtually every AFPC position on the illegal selection board issues in
his case were not supported by documentation.

Applicant’s complete response is attached at Exhibit G.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

Pursuant to the Board’s request, HQ AFPC/DPPPA and HQ AFPC/JA provided
the following advisory opinions.

The Chief, Appeals and SSB Branch, HQ AFPC/DPPPA, have  taken  another
review of the letters of support the applicant provided.  DPPPA stated
that it  is  apparent  his  evaluators  for  the  15  Apr  93  Officer
Performance  Report  (OPR)   and   CY93A   (12   Oct   93)   Promotion
Recommendation Form (PRF) were unaware he had been selected as an  Air
Mobility Command  (AMC)  squadron  commander  candidate  on  the  1993
Phoenix Eagle list.  DPPPA therefore  would  not  be  opposed  to  the
applicant receiving Special Selection Board (SSB) consideration by the
CY93A board, with the revised version of the 15  Apr  93  OPR  in  his
Officer Selection Record (OSR) or replacing the CY93A PRF, as written.
 The applicant’s argument regarding the group size of “1” versus “N/A”
is moot.  Air Force policy now mandates the group  size  on  corrected
PRFs mirror the group size on the original PRF.

DPPPA stands by their original recommendation of denial  in  reference
to the applicant’s request to upgrade the promotion recommendation  on
the CY94A (11 Oct 94) PRF to a “DP.”  The applicant failed to  provide
any support from the senior  rater  and  Management  Level  Evaluation
Board (MLEB) president to support his request  to  upgrade  the  CY94A
PRF.

The applicant’s concerns regarding the “corrected by”  annotations  on
documents filed in  his  OSR  are  unfounded  as  addressed  in  their
previous advisory (Exhibit E).  DPPPA  indicated  that  if  the  Board
should grant the applicant’s request to receive SSB  consideration  by
the CY93A central selection board, with a corrected  Apr  93  OPR  and
CY93A (P0593A) PRF, the “corrected by” annotations  on  those  reports
(and any other corrected documents in his OSR) will be removed.

DPPPA concurs with the previously-written advisories on the  issue  of
direct promotion.   The  “new  evidence”  the  applicant  provided  to
document this appeal is virtually identical to  that  which  has  been
repeatedly reviewed with other appeals and have found  to  be  nothing
more than unsubstantiated conjecture,  wholly  without  merit.   DPPPA
recommended denial of the applicant’s request for direct promotion.

A complete copy of this evaluation is appended at Exhibit H.


The Staff Judge Advocate, HQ AFPC/JA, concurs with AFPC/DPPPA’s 26 Oct
98  recommendation  to  correct  the  requested  documents   and   SSB
consideration for promotion.  JA also agrees with  DPPPA’s  assessment
that the CY94A PRF should not be upgraded since the applicant has  not
provided support from the senior rater and MLEB  president.   For  the
reasons outlined, it is JA’s opinion that this application  should  be
granted only to the extent recommended by AFPC/DPPPA.

JA indicated that the rest of  applicant’s  brief  presents  arguments
attacking as illegal various aspects  of  the  Air  Force’s  promotion
board procedures, claiming that they violated statute,  DoD  directive
and Air Force regulation.   Specifically,  he  argues  that  promotion
board panels operate independently of one another,  thereby  rendering
as impossible the promotion  recommendation  by  “a  majority  of  the
members of the board” mandated by  10  U.S.C.  616  or  the  resulting
certification required by 10 U.S.C. 617.  JA stated that on 14 Oct 98,
the Court of Appeals for the Federal Circuit issued  its  decision  in
Small v. United States, upholding  the  integrity  of  the  Air  Force
promotion system.  The Court, in a unanimous decision, held  that  the
Air Force’s use of panels complies with the statutory requirements  of
10 U.S.C. 616 and 617.   The  Court  agreed  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 f the findings and recommendations of  a  sub-group--i.e.,  a
selection panel.”  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 is permissible under the statutory scheme as well.”

Applicant argues that  the  Air  Force  promotion  board  was  illegal
because the Air Force convened a single  board  consisting  of  panels
rather  than  convening  separate  boards  as  required  by  the   DoD
Directive.  In JA’s opinion, this argument is without  merit.   It  is
clear that the directive’s purpose in requiring  separate  boards  for
each competitive category is to ensure  that  these  officers  compete
only against  others  in  the  same  competitive  category--to  assure
fairness and compliance with Title 10, Chapter 36.  In fact,  each  of
the nonline competitive panels are panels in  name  only;  they--along
with  the  line  competitive  category  panels--operate  as   separate
promotion boards for purposes  of  the  statutes  and  DoD  Directive.
Consequently, they fulfill all the requisite statutory and  regulatory
requirements.

JA disagrees with the applicant’s argument that the board  president’s
duties in the  Air  Force  process  violates  DoD  Directive  1320.12,
Section F, para 2(a)(1).  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.  In the  absence  of  evidence  to  the
contrary, the board president and  other  members  of  the  board  are
entitled to the presumption that they carried  out  their  duties  and
responsibilities properly and according to law.

Applicant also contends that the Air Force violated 10 U.S.C. 615  and
DoD Directive 1320.12 by failing to issue written  standard  operating
procedures.  In JA’s opinion, the  revised  directive  fully  complies
with the DoD Directive, and the fact that not every  single  procedure
utilized by selection board personnel is described in  detail  in  the
Air Force Instruction does not impeach that conclusion.

The applicant claims that  his  nonselection  cannot  be  remedied  by
Special Selection Board (SSB) consideration for 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.  JA indicated  that  the  applicant  has  not  provided  a
meritorious application warranting the need for any  relief.   As  for
the merits of these  claims,  JA  concurs  with  the  advisory  by  HQ
AFPC/DPPB.  In JA’s opinion,  the  Air  Force’s  SSB  procedure  fully
comports with the 10 U.S.C. 628(a)(2).

As to the request for direct promotion, 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.

A complete copy of this evaluation is appended at Exhibit I.
_________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and was surprised by  the
change in the AFPC position, and amends his request  accordingly.   As
he understands, the  following  will  occur:   (1)  His  OPR  will  be
corrected and the “corrected by” annotations will be “hidden” from the
board as prescribed by the current AFI  36-2401  (annotations  at  top
under the ace fasteners).  (2)  His PRF will also be corrected and the
review group size will be marked “N/A.”   (3)   The  corrected  record
will meet the next scheduled SSB following a decision  by  the  Board.
Assuming his interpretations are correct, he amends his  complaint  to
correct the corrective actions proposed by the Air Force (Exhibit K).
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence  of  probable  error  or  injustice   warranting   favorable
consideration to a portion of applicant’s requests.   After  reviewing
the documentation submitted with this appeal, we are in agreement with
the opinions and recommendations of the appropriate Air Force  office,
HQ AFPC/DPPPA, that  corrective  action  is  required  concerning  the
Officer Performance Report (OPR),  closing  15  April  1993,  and  the
P0593A Promotion Recommendation Form (PRF).  In this respect, we  note
the statements provided from the evaluators of the contested  OER  and
PRF indicate that  information  concerning  the  applicant’s  squadron
commander selection were unintentionally omitted from  the  cited  OPR
and PRF, which  impacted  the  applicant’s  promotion  potential,  and
therefore support the applicant’s appeal concerning the  OPR  and  PRF
under review.  In further support  of  this  request,  the  Management
Level  Evaluation  Board  (MLEB)  president   provided   a   statement
indicating that the inadvertent omission of the applicant’s  selection
as an Air Mobility Command (AMC) squadron commander candidate  on  the
1993 Phoenix Eagle list could have made a difference in the outcome of
the applicant’s promotion board standing.  Based on the statements  of
support, we recommend that the OPR  closing  15  April  1993  and  the
P0593A PRF be replaced with a reaccomplished OPR and PRF.  It has been
noted that the applicant indicated his agreement with  the  corrective
actions proposed by HQ AFPC/DPPPA.   In  view  of  the  foregoing,  we
recommend the applicant’s records be corrected to the extent indicated
below and that the applicant’s  corrected  record  be  considered  for
promotion to the grade of lieutenant colonel by  a  Special  Selection
Board (SSB) for the CY93A Lieutenant Colonel Board, which convened  on
12 October 1993.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable  error  or  injustice  with  regard  to  the
remainder of applicant’s requests.  Applicant’s  numerous  contentions
concerning the statutory compliance of the  central  selection  boards
and the legality of the special selection  board  (SSB)  process,  are
duly noted.  After a thorough review of the  evidence  of  record  and
applicant’s submission, we are  not  persuaded  that  the  P0594A  PRF
should be upgraded; his nonselections for promotion to  the  grade  of
lieutenant colonel be set aside; or that he receive a direct promotion
to the grade of lieutenant colonel with back pay and benefits.  We  do
not find applicant’s assertions, in and  by  themselves,  sufficiently
persuasive to override the rationale provided by the Air Force offices
of primary responsibility.  With respect to the request for  a  direct
promotion, we have seen no evidence which would  lead  us  to  believe
that the applicant’s corrected record is so misleading that  the  duly
constituted SSBs, which would have tools available for  their  use  to
which  we  do  not  have  access  and  which  are  vested   with   the
discretionary authority to select officers  for  promotion,  would  be
unable to  make  a  reasonable  decision  concerning  the  applicant’s
promotability.  Therefore, we find no compelling  basis  to  recommend
granting this portion of the application.

5  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 counsel, would not have  materially  added
to that understanding.  Therefore, the request for a  hearing  is  not
favorably considered.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

      a.    The Field Grade Officer Performance Report (OPR), AF  Form
707A, rendered for the period 16 April 1992 through 15 April 1993,  be
declared  void  and  removed  from  his  records;  and,  the  attached
reaccomplished OPR be accepted for file in its place.

      b.    The Promotion Recommendation (PRF), AF Form 709,  prepared
for consideration by the CY93A  (P0593A)  Central  Lieutenant  Colonel
Board, which convened on 12 October 1993, be declared void and removed
from his records; and, the attached reaccomplished PRF be accepted for
file in its place.

It is further recommended that he be considered for promotion  to  the
grade of lieutenant colonel by  a  Special  Selection  Board  for  the
Calendar Year 1993 Central Lieutenant Colonel Selection  Board,  which
convened on 12 October 1993, with the reaccomplished OPR and PRF,  and
any subsequent boards for which the OPR closing 15 April  1993  was  a
matter of record.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 March 1999, under the provisions  of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Mr. John E. Pettit, Member
              Mr. Gregory W. DenHerder, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 Jan 95, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPMAJEB, dated 3 Mar 95.
   Exhibit D.  Letter, HQ AFPC/DPMAB, dated 3 Apr 95.
   Exhibit E.  Letter, HQ AFPC/DPPP, dated 20 Nov 95.
   Exhibit F.  Letter, SAF/MIBR, dated 4 Dec 95.
   Exhibit G.  Letters from applicant, dated 15 Jan 95 (96),
                   w/atchs, and 5 Apr 96, w/atch.
   Exhibit H.  Letter, HQ AFPC/DPPPA, dated 26 Oct 98.
   Exhibit I.  Letter, HQ AFPC/JA, dated 29 Oct 98.
   Exhibit J.  Letter, SAF/MIBR, dated 16 Nov 98.
   Exhibit K.  Letter from applicant, dated 28 Dec 98





                                   THOMAS S. MARKIEWICZ
                                   Panel Chair



AFBCMR 95-00115
INDEX CODE:  111.01, 131.00




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that:

            a.   The Field Grade Officer Performance Report (OPR), AF
Form 707A, rendered for the period 16 April 1992 through 15 April
1993, be, and hereby is, declared void and removed from his records;
and, the attached reaccomplished OPR be accepted for file in its
place.

            b.   The Promotion Recommendation (PRF), AF Form 709,
prepared for consideration by the CY93A (P0593A) Central Lieutenant
Colonel Board, which convened on 12 October 1993, be, and hereby is,
declared void and removed from his records; and, the attached
reaccomplished PRF be accepted for file in its place.

      It is further directed that he be considered for promotion to
the grade of lieutenant colonel by a Special Selection Board for the
Calendar Year 1993 Central Lieutenant Colonel Selection Board, which
convened on 12 October 1993, with the reaccomplished OPR and PRF, and
any subsequent boards for which the OPR closing 15 April 1993 was a
matter of record.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency

Attachments
1.  Reaccomplished OPR
2.  Reaccomplished PRF