RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00348

                 COUNSEL:  NONE

                 HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  He receive a direct promotion to the grade of  lieutenant  colonel
as if selected by the Calendar Year 1997E (CY97E)  Central  Lieutenant
Colonel Board.

2.  Or, in the alternative, he receive promotion consideration to  the
grade of lieutenant colonel by special selection board (SSB)  for  the
CY97E Central Lieutenant Colonel Board, comprised of all  active  duty
regular officers and, comprised of five voting members on  the  active
duty list.

3.  Applicant is also requesting  that  his  “Company  Grade”  Officer
Performance Report” (OPR), for the period 9 April 1993 through 8 April
1994, currently in his officer selection record,  with  an  annotation
“Member promoted to Major with a retroactive effective date  prior  to
the date this report was rendered,” be declared void and replaced with
a reaccomplished “Field Grade” OPR for the same period.

APPLICANT CONTENDS THAT:

A material error existed in the composition of  the  CY97E  Lieutenant
Colonel Selection Board that considered him for promotion in that  the
board violated the statutory provisions of Title  10  U.S.C.  Sections
612, 616, and 617 and the regulatory provisions  of  AFI  36-2501,  by
failing to consist of five or more voting members on the  active  duty
list (ADL).

Applicant also contends that the OPR in  question  has  a  typewritten
notation to advise readers that he was retroactively promoted  through
the SSB process.  Such an approach flags him as a special selectee and
raises  fundamental  questions  of  fairness  and  administrative  due
process.

In support of his appeal, the applicant submits letters from the rater
and additional rater of the  original  8  April  1994  OPR.   He  also
submits a reaccomplished Field Grade OPR for the same period.

Applicant’s submission is attached at Exhibit A.



STATEMENT OF FACTS:

During the contested time period, applicant was  serving  on  extended
active duty in the grade of major.

Applicant previously submitted appeals under the provisions of AFI 36-
2401, Correcting Officer and Enlisted Evaluation Reports, and AFI  36-
2603 on unrelated issues.  Applicant has one nonselection to the grade
of lieutenant colonel by  the  Calendar  Year  1997E  (CY97E)  Central
Lieutenant Colonel Selection Board.

The applicant submitted an appeal to  the  AFBCMR  on  19  June  1998,
wherein he  contended  there  were  numerous  errors  on  his  Officer
Selection Brief  (OSB).   AFPC/DPPPAB,  after  review,  corrected  his
records and he was given consideration for promotion to the  grade  of
lieutenant colonel by the CY97B and CY97E lieutenant colonel promotion
boards (below-the-zone, BPZ and in-the-promotion zone IPZ) by  special
selection board (SSB) in May 1999.   Applicant  was  not  selected  by
either board.

Applicant’s Officer Performance Report (OPR) profile is as follows:

          PERIOD ENDING          OVERALL EVALUATION


             8 Apr 93 (Capt)     Meets Standards

          *  8 Apr 94 (Prom Maj) Meets Standards
            31 Jul 94            No report available/required
                                 according to AFI 36-2402
            14 Mar 95            No report available, Officer
                                 restored to active duty by
                                 direction of SAF
            14 Mar 96            Meets Standards
         #  14 Mar 97            Meets Standards
            14 Mar 98            Meets Standards

* Contested OPR

#  Top report at time of nonselection to the grade of lieutenant
   colonel by the CY97E Central Lieutenant Colonel Board


AIR FORCE EVALUATION:

The Chief of Operations, Selection Board  Secretariat,  HQ  AFPC/DPPB,
states that they do not agree with applicant’s  contentions  that  the
CY97E promotion board did not comply with governing  directives.   The
directives require the board consist of:  (1) at least  five  officers
from the Active Duty List; (2) a corps representative; (3)  a  reserve
representative; (4) the board president and the panel chairperson must
be Line of the Air Force officers.  The CY97E board was in  compliance
with these requirements.  The law does not address voting versus  non-
voting board members; nor does the law address  the  position  of  the
board president.  The Department of Defense Instruction (DoDI) 1320.14
directs the secretary of the military department concerned to  appoint
a member of the promotion board as president of the board.   Recommend
applicant’s request be denied.

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

The  Chief,  Promotion,  Evaluation  and  Recognition   Division,   HQ
AFPC/DPPP, states, regarding the  applicant’s  request  for  a  direct
promotion, that an officer may be qualified for promotion, but, in the
judgment of a selection board—vested with discretionary  authority  to
make the selections—may not be the best qualified of  those  available
for the limited  number  or  promotion  vacancies.   Absent  clear-cut
evidence the applicant would have been a selectee by the CY97E  board,
AFPC/DPPP  believes  a  duly  constituted  board  is   in   the   most
advantageous position to render this  vital  determination.   Further,
both Congress and  DoD  have  made  clear  their  intent  that  errors
ultimately affective promotion should be resolved through the  use  of
special selection boards (SSBs).  Even if the applicant were  to  show
the board composition was improper, which AFPC/DPPP does  not  believe
he has,  the  remedy  would  not  be  to  promote  the  applicant.   A
reaccomplishment  of  the  board  would  be  the  appropriate  remedy.
Recommend the applicant’s request be denied.

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

The Staff Judge Advocate, HQ AFPC/JA,  states  that  Title  10  U.S.C.
612(a)(1) and AFI 36-2501 (para  2.3)  require  that  selection  board
consist of at least five officers who are  on  the  active  duty  list
(ADL).  In the opinion of AFPC/JA, neither the law nor the legislative
history require that all five ADL members be voting members, nor  does
the law even suggest that.

Clearly, the board president is a member of the board, and his  status
on the ADL was properly considered in determining  whether  the  board
was properly constituted.   The  regulatory  requirements  for  proper
board membership were met in this case - the  board  was  composed  of
five  members  on  the  ADL,  and  three  voting  line  officers.   No
requirement exists that the three voting line officers all be  on  the
ADL.

With regard to  applicant’s  request  for  direct  promotion,  AFPC/JA
concurs with AFPC/DPPP’s comment that SSB consideration is the fairest
and best practice to remedy errors or injustices concerning promotion.
 However, since AFPC/JA believes applicant’s central  selection  board
was properly constituted, SSB consideration is not warranted  in  this
case.

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




REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
19 April 1999 for review and response.  Applicant states, in  summary,
that Title 10, DoD  Instruction  and  Air  Force  Instruction  clearly
require that a promotion board be comprised of five voting members  on
the active duty list.  Since the reserve member appointed to the CY97E
selection board was not  on  the  active  duty  list,  and  the  board
president is not a board member as contemplated by  in  the  DoDI  and
AFI, the selection board failed  to  comply  with  the  statutory  and
regulatory board membership requirement of five voting members on  the
active duty list.

A copy of the applicant’s response, with attachments, is  attached  at
Exhibit G.



THE BOARD CONCLUDES THAT:

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

2.    The application was not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence  of  probable  error  or  injustice.   After  thoroughly
reviewing the evidence of record, we make the following findings:

             a.    Applicant's  numerous  contentions  concerning  the
statutory compliance of Calendar Year 1997E Central Lieutenant Colonel
Selection Board are  duly  noted.   However,  we  do  not  find  these
uncorroborated  assertions,  in  and   by   themselves,   sufficiently
persuasive to override the rationale provided by the Air Force.

            b.   With respect to  replacing  the  Officer  Performance
Report (OPR) closing 8 April 1994 with a reaccomplished OPR,  we  note
that the reaccomplished report is  substantially  different  from  the
original report.   We  note  the  statements  from  the  rating  chain
members, and while we do not wish to second guess the rating chain, we
are not sufficiently persuaded that the the contested report should be
replaced.  We do not believe the statement added to the  side  of  the
contested report is so egregious as to have prevented  applicant  from
receiving full and fair consideration for promotion.  Further as noted
by the Evaluation Reports Appeal Board (ERAB),  this  is  a  statement
which was agreed upon by the Board to use in just such  circumstances.
Absent clear-cut evidence to show that this  statement  was  the  sole
reason for applicant’s non-selection to the higher grade, we  are  not
persuaded that the contested report should be voided and replaced.

Therefore, in view of the foregoing, and in the absence of evidence to
the contrary, we agree with the recommendation of the  Air  Force  and
adopt the rational expressed as the basis for our conclusion that  the
applicant failed to sustain his burden of establishing  the  existence
of either an error or an  injustice  warranting  favorable  action  on
these requests.

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  issue(s)   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 1 February 2000, under the provisions of AFI  36-
2603:

                 Mr. Terry A. Yonkers, Panel Chair
                 Mr. George Franklin, Member
                 Mr. Gregory H. Petkoff, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 1 Feb 99, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPB, dated 16 Feb 99.
      Exhibit D. Letter, AFPC/DPPP, dated 19 Feb 99.
      Exhibit E. Letter, AFPC/JA, dated 30 Mar 99.
      Exhibit F  Letter, AFBCMR, dated 19 Apr 99.
      Exhibit G. Applicant's response, dated 3 May 99.




      TERRY A. YONKERS
      Panel Chair