RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-01786

            COUNSEL:  NONE

            HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

1.    The Officer Performance Reports (OPRs) closing 16 September  1992  and
16 September  1993,  be  amended  to  include  an  appropriate  Professional
Military Education (PME) recommendation.

2.    His nonselection for promotion to the grade of lieutenant colonel  for
the Calendar Year 1994 Lieutenant Colonel Selection Board be declared void.

3.    He be promoted to the grade of lieutenant  colonel  in  the  promotion
zone (IPZ) as if selected by  the  Calendar  Year  1994  Lieutenant  Colonel
Selection Board.

4.    His records be corrected to show continuous active duty service  since
his separation to include restoration of all pay, benefits,  and  any  other
entitlements to include carryover of the maximum amount  of  leave  for  the
period he was not on active duty.


APPLICANT CONTENDS THAT:

The contested OPRs contain inappropriate PME recommendations; he was  denied
fair and equitable consideration for a “Definitely Promote”  recommendation,
and the selection boards were contrary to statute and Department of  Defense
(DOD) directive.

The applicant states that the PME  recommendations  on  the  contested  OPRs
both recommend him for the wrong  PME  level  (Intermediate  Service  School
(ISS)).  He has contacted the rating officials and they have indicated  that
it was their intent to recommend him  for  the  appropriate  level  of  PME,
which would have been Senior Service School (SSS).

He was nonselected for promotion  by  the  CY94  board,  and  elected  early
retirement to preserve his retirement rights.  However, in  early  1997,  he
discovered the CY94 board was flawed.

Since the top two OPRs used by his senior rater and by the Management  Level
Evaluation Board (MLEB) were in error when his  record  of  performance  was
reviewed for his promotion recommendation, the PRF process was tainted.   As
a carry over, there is no way to assess the impact of this error.   However,
his  senior  rater  had  nominated  him  to  the   MLEB   for   carry   over
consideration.  While his MLEB only awarded “DPs”, other MLEBs awarded  “top
promote”  recommendations  which  diluted  the  value   of   the   “Promote”
recommendation he received.

The applicant contends the selection boards failed to  follow  the  law  and
guidance which establish the basic  procedures  each  selection  board  must
follow.   As such the minimum due process procedures established by  statute
and required before a selection board can find any officer  best  and  fully
qualified for promotion were violated.  He notes that actual selections  are
made at the panel level which consists of only five board members -  clearly
not a majority of the total membership of the board.  He cites  the  court’s
ruling in Roane that without review of all the records recommended, a  board
cannot fulfill the statutory requirement that a majority of  the  membership
of the board recommended the officers.  He also believes that  an  arbitrary
and capricious scoring system is used by SSBs which minimize selections.

The applicant’s complete submission is attached at Exhibit A.


STATEMENT OF FACTS:

On 8 February 1979, the applicant was commissioned a second  lieutenant  and
entered extended active duty.

The applicant was considered and not selected for promotion to the grade  of
lieutenant colonel by the CY94A Central Lieutenant Colonel Selection Board.

On 1 September 1995, the applicant retired for  length  of  service  in  the
grade of major.  He completed 20 years, 6  months  and  23  days  of  active
service.

A resume of applicant’s performance profile, since 1989, follows:

      PERIOD ENDING               EVALUATION OF POTENTIAL

         9 Feb 89        Meets Standards (MS)
         9 Feb 90                MS
         9 Feb 91                MS
         9 Feb 92                MS
      * 16 Sep 92                MS
      * 16 Sep 93                MS
         5 Jun 94                MS

* Contested reports


AIR FORCE EVALUATION:

The Chief, Appeals and SSB Branch,  AFPC/DPPPA,  reviewed  this  application
and states that Air Force policy is that evaluation reports are accurate  as
written when they become a matter of record.  To  effectively  challenge  an
OPR, it is necessary to hear from all the evaluators from the report  –  not
only for support, but for clarification/explanation.  They are not  provided
support from the evaluators on the contested OPRs in  this  appeal  package.
In the absence of their support, they  cannot  recommend  changing  comments
they have written and signed.  The applicant states that  they  support  his
request to revise the reports, but they are not heard from in  this  appeal.
While it would have been appropriate to recommend  the  applicant  for  SSS,
rather than ISS, on his 16 September 1993 OPR, it  was  not  appropriate  to
recommend ISS on the 16 September 1992 OPR, because the applicant was  still
eligible to attend ISS.  The fact  that  a  PME  board  would  not  see  the
16 September 1992 OPR does not make the  ISS  recommendation  invalid.   ISS
recommendations are valid for three years after an Air Force member  assumes
the grade  of  major.   They  would  not  be  opposed  to  voiding  the  ISS
recommendation on the 16 September 1993 OPR, but do not  recommend  approval
of an SSS recommendation being added in the absence of concurrence from  the
rating  chain.   Should  the  Board  void  the  ISS  recommendation  on  the
16 September 1993 OPR,  they  believe  the  applicant’s  lack  of  diligence
precludes SSB consideration by the CY94 board.

AFPC/DPPPA  states  that  applicant’s  contention  that  his  CY94  PRF  was
accomplished using an unfair process is unfounded.  The  applicant  provides
no statement from the evaluator on the PRF,  and  no  accompanying  evidence
that might substantiate his claims.  They do not find  anything  technically
inaccurate in the PRF.  As they do not believe the  contested  OPRs  require
correction and  are  not  convinced  an  injustice  occurred,  they  do  not
recommend changing the PRF.

In regard to applicant’s request for direct  promotion,  AFPC/DPPPA,  states
that a duly constituted board comprised  of  senior  officers  is  the  most
appropriate method of determining the applicant’s potential to serve in  the
next higher  grade.   There  is  no  foundation  for  the  direct  promotion
request.  They believe the applicant has failed to prove he did not  receive
full and fair consideration by the CY94 board.  Even if the  applicant  were
to prove the promotion system illegal (they do not believe he had), they  do
not understand how this correlates to his promotion status.  If  the  boards
were found to be illegal, the remedy would not be to promote the  applicant.
 A reaccomplishment of the boards would be the only  logical  remedy.   They
find the often used compilation of memorandums and letters included  in  the
applicant’s  appeal  package  to  be  wholly  without  merit  and  partially
illegible.  As they do not believe any correction to the applicant’s  record
is  necessary  in  relation  to  this  appeal,  SSB  consideration  is   not
warranted.  They  strongly  recommend  denial  of  his  request  for  direct
promotion.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The Chief of Operations, Selection Board  Secretariat,  AFPC/DPPB,  reviewed
this application and states the following:

      a.    Air Force legal representatives have reviewed  their  procedures
and have determined those procedures comply  with  applicable  statutes  and
policy.

      b.    The Air Force has used the  panel  concept  for  many  years  in
conducting selection boards.  The panel concept has safeguards to ensure  an
equal distribution of the quality spectrum of records to each panel.

       c.     Applicant  seems  to  imply  that  the  post-board  action  of
preparing an alpha select list of the  board’s  recommendations  constitutes
some illegal action and voids the entire  board.   The  alpha  select  list,
which  must  be  attached  to  the  official   board   report,   is   merely
recapitulation of the  selects  from  the  board  in  alpha  sequences  vice
numerical sequence.  The list is audited to ensure 100% accuracy  before  it
becomes part of the board report.

      d.    The actions/responsibilities of  each  board  president  are  in
compliance with governing directives.

      e.    DOD Directive 1320.12  directed  separate  promotion  boards  be
conducted for each  competitive  category  and  also  authorized  conducting
those  separate  boards  concurrently.   The   directive   also   authorized
consolidating  the  results  of  the  boards  into  a  single  package   for
presentation to the approving authority.  This has been done for many  years
without challenge or objection by Air Force legal representatives.

      f.    Applicant contends the  Air  Force  has  neither  developed  nor
issued standard operating procedures for selection  boards.   Upon  approval
and publishing of DoDD 1320.12, 4 February 1992,  all  Air  Force  promotion
boards were placed  on  hold  pending  a  complete  rewrite  of  AFR  36-89,
Promotion of Active Duty List  Officers  (recently  superseded  by  AFI  36-
2501).  Only after the new AFR 36-89  was  approved  by  the  Secretary  and
published on 17 April 1992, did they resume promotion boards.

      g.    The identification of  benchmark  records  from  each  selection
board is in compliance with governing directives.

      h.    The SSB scoring system is not  arbitrary  and  capricious.   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  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.
Whenever the inversion is of a nature  that  a  nonselect  benchmark  record
receives the highest score by the SSB and the consideree’s  record  receives
the same score or even the second highest  score,  the  nonselect  benchmark
record and the consideree’s record are returned to  the  board  members  for
rescoring.  If the consideree’s record  scores  higher  than  the  nonselect
benchmark, the consideree will be a select.  Regardless  of  the  situation,
SSB members are not informed  which  record  is  a  benchmark  record  or  a
consideree record.

Therefore, they recommend denial of applicant’s requests.

A complete copy of the Air Force evaluation is attached at Exhibit D.

The Senior Attorney-Advisor, AFPC/JA, reviewed this application  and  states
that the entire Air Force promotion  recommendation  process  is  totally  a
creature of Air Force regulation; it is not governed at all  by  statute  or
DoD Directive.  Consequently, its “legality” can be tested solely by  virtue
of whether the  Air  Force  has  followed  its  own  regulation.   In  their
opinion, by its very terms, the regulation does  not  prohibit  the  process
the applicant claims was used by certain commands.   Applicant  also  argues
that the top promotion program was  improper  because  it  was  not  applied
uniformly across the Air Force.  As a consequence, he argues, he  was  at  a
competitive disadvantage in competing for these recommendations since  other
commands had different “top promote” quotas.  While it is true  that  AF/CC,
upon the recommendation  of  the  Officer  Evaluation  System  (OES)  Review
Group, eventually eliminated the above stratification system  at  management
levels, it was because of feared problems with perceptions of fairness,  not
because the system was illegal.  The system that was used in many  commands,
though ultimately determined to be flawed, never operated  in  contravention
of the governing regulation.

AFPC/JA states 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.   The  House  Armed  Services
Committee Report (97-141) that accompanied  the  Defense  Officer  Personnel
Management Act (DOPMA) Technical Corrections Act (P.L.  97-22)  specifically
references panels as a  type  of  administrative  subdivision  of  selection
board.  Consequently, it is clear  that  at  the  time  DOPMA  was  enacted,
Congress was certainly aware of the existence of promotion board panels  and
expressed no problem with them.

AFPC/JA notes that the duties prescribed for board presidents by  Air  Force
regulation 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.

AFPC/JA  states  that  as  a  result  of  the  requirements  levied  by  the
4 February 1992 version of the directive, the Air Force  rewrote  AFR  36-89
to comply with those requirements and published it on  17  April  1992.   In
their opinion, this 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 does not impeach that conclusion.

In regard to SSB consideration, AFPC/JA  states  that  the  Air  Forces  SSB
procedures fully comport 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,
otherwise, and he has failed to do  so.   Therefore,  they  recommended  the
application be denied.

A complete copy of the Air Force evaluation is attached at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  reviewed  the  Air  Force  evaluation  and  states  that  his
application is timely filed.  The applicant states  that  despite  the  fact
that he has provided support from every evaluator on the contested  OPRs  as
well as from the  senior  rater  on  the  contested  PRF,  AFPC  submits  no
evidence to support their position.  He believes he has documented proof  of
the procedures which the Air Force has failed to issue, gain  approval  for,
but still use in its selection process.

In regard to  the  contested  OERs,  the  applicant  notes  that  AFR  36-10
required PME recommendation be made for appropriate PME  attendance  at  the
evaluator’s prerogative.  However, AFPC is totally silent on  the  merit  of
this issue and seeks to deny relief on the basis of timeliness.

Concerning the contested PRF, the  applicant  states  that  AFPC  failed  to
discuss the impact the flawed OPRs could have had on the MLEB’s decision  to
award him a “Promote” recommendation.  As indicated  by  the  senior  rater,
his ability to compete for a “Definitely Promote” recommendation would  have
been substantially improved.  He does not believe the MLEB  process  can  be
replicated  and  requests  the  Board  upgrade  the  PRF  to  a  “Definitely
Promote”.

The applicant’s complete response is attached at Exhibit G.



ADDITIONAL AIR FORCE EVALUATION:

The Chief, Appeals and SSB Branch,  AFPC/DPPPA,  reviewed  this  application
and states that even with the new evidence provided,  they  still  stand  by
their original recommendation that the application  should  be  time-barred.
The applicant has not demonstrated diligence in challenging the validity  of
the reports.  As stated in their previous advisory, an intermediate  service
school (ISS) recommendation on the contested 16  September  1992  OPR  would
have been inappropriate since the applicant was  still  eligible  to  attend
ISS.  They are not opposed to  correcting  the  16  September  1993  OPR  to
reflect senior service  school  (SSS)  recommendations  as  opposed  to  ISS
recommendations. The applicant now has the  required  evaluator  support  to
correct both OPRs.   They  note  the  rater  and  additional  rater  on  the
16 September 1992 OPR also discuss  correcting  the  applicant's  9 February
1992 OPR.  However, since  the  applicant  has  not  appealed  this  report,
comments regarding this OPR are irrelevant.  Since  the  applicant  now  has
the required support, they would not object to correcting the  16  September
1992 OPR as follows:

      a.    Section VI,  Rater  Comments:  Last  line,  change  "Select  for
Intermediate Service School” to "Select for Senior Service School".

      b.    Section VII, Additional Rater Comments: Last two  lines,  change
“...-definitely select for Intermediate Service School" to  '...--definitely
select for Senior Service School"

AFPC/DPPPA states that although  the  rater  and  additional  rater  support
changing their comments to reflect SSS recommendations on the  OPR,  closing
6 September 1993, neither  of  these  individuals  specifically  state  what
their comments should read, and they are reluctant to  make  corrections  to
the OPR without their concurrence.  Therefore, both evaluators will need  to
specify  exactly  what  their  comments  should  read.   Even   with   these
corrections, they do not support promotion reconsideration for two  reasons;
the applicant was not diligent in his efforts to have the reports  corrected
within three years  following  their  publication,  and  they  consider  the
corrections to be administrative in nature.  While it  may  be  argued  that
the contested OPRs were factors in the applicant's  nonselection,  there  is
no clear evidence that they negatively impacted his  promotion  opportunity.
Central  boards  evaluate  the  entire  officer   selection   record   (OSR)
(including the promotion recommendation form,  OPRs,  officer  effectiveness
reports, training reports, letters of evaluation, decorations,  and  officer
selection brief), assessing whole person factors such  as  job  performance,
professional qualities, depth and breadth  of  experience,  leadership,  and
academic and professional military education.  They are  not  convinced  the
contested OPRs caused the applicant's nonselection.

A complete copy of the Air Force evaluation is attached at Exhibit I.

The Chief of Operations, Selection Board  Secretariat,  AFPC/DPPB,  reviewed
this application.  In  regard  to  the  applicant’s  contentions  concerning
defective selection boards, even with the new information provided,  he  has
offered nothing new.  Therefore, they stand by their original comments.

A complete copy of the Air Force evaluation is attached at Exhibit J.


APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and  states  that  although
AFPC still quibbles about the timeliness of the application, he reminds  the
Board of the unambiguous language of Detweiler.  As for their  comment  that
he was not diligent in his efforts to have these  reports  corrected  within
three years following their publication, he asks the Board to  look  at  the
"source document" for the change in PME  selection  policy.   It  should  be
quite easy to why he was not informed - just  as  his  evaluators  were  not
informed.  The policy change was never announced to them.

Concerning the contested OPRs,  the  applicant  states  that  although  AFPC
supports correction of the OPR, closing 16 September 1993, they continue  to
quibble about the OPR, closing 16 September 1992, although  both  evaluators
clearly support changing this report.  Both reports are technically flawed.

In regard to promotion errors, the applicant asks the Board to remember  the
whole AFPC theory  of  the  legality  of  selection  boards  is  based  upon
"certification" that the "process" selected  the  best  officers.   However,
this is in contrast to 10 USC § 616, which states, "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 and a  majority  of
the members of the board finds that  the  officer  is  fully  qualified  for
promotion."  There  is  nothing  about  a  "process"  stated.   Without  the
recommendation of the majority of the members of the board  an  officer  may
not be recommended.  What AFPC has provided proves the  SAF  never  approved
the procedures.  To accept AFPC's position, you must  demand  proof  of  the
many novel concepts of board operations for which  SAF  approval  was  never
obtained.  AFPC has not disputed the fact its own rules allow  selection  to
be governed not by majority consensus,  but  rather  by  the  minority.   It
provided this Board with no evidence about this process or SAF  approval  of
the process.

The applicant states that he has been unable to  obtain  information  as  to
who the MLEB president was for the contested PRF, how the MLEB operated,  or
any other information which would allow  him  to  obtain  MLEB  support  for
upgrade of a "carry over" DP recommendation.

The applicant’s complete response is attached at Exhibit L.


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 to warrant amending  the  contested
OPRs.  In this respect, we note that since the applicant had served  in  the
grade of major for over 3 years at the time the OPR,  closing  16  September
1993 was rendered, it was inappropriate to recommend ISS,  rather  than  SSS
on the report.  Furthermore, based on the statements  from  the  applicant’s
rating chain, we believe they also intended to recommend  SSS,  rather  than
ISS on the OPR, closing 16 September 1992.  In view of these statements  and
in the absence of a basis to question their integrity of  these  senior  Air
Force officials, we recommend the contested reports be  amended  to  reflect
SSS, rather than ISS.  In  addition,  we  recommend  he  be  considered  for
promotion to the grade of lieutenant colonel by SSB for the CY94A board.

4.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice  regarding  the  remainder  of  his
requests.  The applicant contends that since the top two OPRs  used  by  his
senior rater and the  Management  Level  Evaluation  Board  (MLEB)  were  in
error, the PRF process  was  tainted  and  denied  him  fair  and  equitable
consideration for a “Definitely Promote” recommendation on his PRF  for  the
CY94A board.  However, applicant has failed to provide statements  from  the
senior rater  and  MLEB  president.   In  addition,  we  have  reviewed  the
recommended changes and in our opinion, they  would  not  have  warranted  a
change  to  the  PRF.   Applicant's  numerous  contentions  concerning   the
statutory compliance of selection boards and SSBs are duly noted.   However,
we do not find  these  uncorroborated  assertions,  in  and  by  themselves,
sufficiently  persuasive  to  override  the  rationale   provided   by   the
appropriate offices  of  the  Air  Force.   Therefore,  we  agree  with  the
recommendations of the Air Force and adopt the  rational  expressed  as  the
basis for their conclusion that applicant failed to sustain  his  burden  of
establishing the existence of either an error  or  an  injustice  warranting
favorable action of this portion of his requests.

5.    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 issue(s) involved.  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,  AF  Form  707A,
rendered for the period 10 February  1992  through  16  September  1992,  be
amended in Block IV, Rater Overall Assessment, by  replacing  the  sentence,
“Select for Intermediate Service School” with  “Select  for  Senior  Service
School.”;  and  in  Block  VII,  Additional  Rater  Overall  Assessment,  by
replacing the sentence, “He has  been  a  cornerstone  of  the  Joint  STARS
program – definitely select for Intermediate Service School.”, with “He  has
been a cornerstone of the  Joint  STARS  program  –  definitely  select  for
Senior Service School.”

      b.    The Field  Grade  Officer  Performance  Report,  AF  Form  707A,
rendered for the period 17 September 1992  through  16  September  1993,  be
amended in Block IV, Rater Overall Assessment, by  replacing  the  sentence,
“Send to Air Command and  Staff  College.”  with  “Send  to  Senior  Service
School.”;  and  in  Block  VII,  Additional  Rater  Overall  Assessment,  by
replacing the sentence, “He’s the cornerstone of interoperability testing  –
definitely select for Intermediate Service  School  and  follow  up  with  a
tough command.” with “He’s the cornerstone  of  interoperability  testing  –
definitely select for Senior Service School  and  follow  up  with  a  tough
command.”

It is further recommended that he be considered for promotion to  the  grade
of lieutenant colonel by Special  Selection  Board  for  the  Calendar  Year
1994A Central Lieutenant Colonel Selection Board.


The following members of the Board considered this application in  Executive
Session on 30 March 1999, under the provisions of AFI 36-2603:

                  Ms. Martha Maust, Panel Chair
                  Ms. Sophie A. Clark, Member
                  Dr. Gerald B. Kauvar, Member

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

      Exhibit A.  DD Form 149, dated 9 Jun 97, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPPA, dated 17 Jul 97.
      Exhibit D.  Letter, AFPC/DPPB, dated 11 Aug 97.
      Exhibit E.  Letter, AFPC/JA, dated 5 Sep 97.
      Exhibit F.  Letter, SAF/MIBR, dated 22 Sep 97.
      Exhibit G.  Letter, Applicant, dated 5 Nov 97, w/atchs.
      Exhibit H.  Letter, AFBCMR, dated 13 Jan 98.
      Exhibit I.  Letter, AFPC/DPPPA, dated 28 Jan 98.
      Exhibit J.  Letter, AFPC/DPPB, dated 2 Mar 98.
      Exhibit K.  Letter, AFBCMR, dated 23 Mar 98.
      Exhibit L.  Letter, Applicant, dated 18 May 98.




             MARTHA MAUST
                                  Panel Chair