RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 00-02425 (Cs #3)
                             INDEX CODE 131.01  131.09
                             COUNSEL:  None

                             HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonselection by the Calendar Year  1998C  (CY98C)  Judge  Advocate
General (JAG) Colonel Selection Board be voided  and  he  be  afforded
consideration by a Special Selection Board (SSB) for the  CY98C  board
comprised of all general officers (or selects) and having five  voting
members on the active duty list (ADL), pursuant to AFP 36-2506  (dated
1 Sep 97), Title 10, USC, Section 612, and AFI 36-2501.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The CY98C JAG selection board failed to  comply  with  the  regulatory
requirement of AFP 36-2506 for all board members to be in the grade of
brigadier general (select) or higher. The board had one colonel.   The
board also  violated  the  statutory  provisions  of  Title  10,  USC,
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  ADL.
One voting member was a Reserve officer not on the ADL.  These  errors
deprived him of the opportunity  to  have  his  record  considered  in
accordance with the mandate of the Secretary of the Air Force.

A copy of applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on  extended  active  duty  in  the
grade lieutenant colonel (date of rank 1 Sep 94)  and  assigned  as  a
contract trial attorney at Wright-Patterson AFB, OH. He was considered
but not selected for the grade of colonel by  the  CY98C  (1  Dec  98)
board. The Promotion Recommendation Form (PRF)  reflected  an  overall
recommendation of “Promote.”

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief of Operations, Selection Board  Secretariat,  HQ  AFPC/DPPB,
reviewed the appeal and asserts  that  the  CY98C  JAG  board  was  in
compliance with the governing directives.  Disapproval is recommended.

A copy of the complete evaluation is at Exhibit C.

The Chief, Appeals & SSB Branch, HQ AFPC/DPPPA, indicates that,  based
on the findings of DPPB, the applicant has not proven  the  board  was
inappropriately  composed  or  illegally   conducted.   Further,   the
applicant has not contested any type of material error in his  officer
selection record (OSR). Therefore, there is  no  basis  for  promotion
reconsideration by the CY98C board.

A copy of the complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant notes that at the 1998 and 1999 AFBCMR  annual  training
conferences, HQ AFPC specifically briefed that all  colonel  selection
boards were required to be made up of general officers or selects. The
DPPB advisory’s statement that “The law does not  require  all  voting
members be on the ADL” is nonsensical and contrary to both the  intent
and spirit of the controlling federal statutes.  The  whole  idea  for
Congress to establish specific criteria for  officer  selection  board
membership was to ensure procedural fairness and predictability. There
would be absolutely no rational  purpose  for  Congress  to  establish
criteria for non-voting members who  play  no  role  in  the  ultimate
decision-making process of a promotion board.

The applicant’s complete rebuttal, with attachments, is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ AFPC/JA, indicates in a footnote that the
office of primary responsibility for AFP 36-2506 has advised that  the
table contained therein represents the “model”  for  0-6  line  boards
only and  was  never  intended  to  apply  to  the  other  competitive
categories (like JAG).  The pamphlet is merely informational  and  not
directive.  Since the applicant’s board consisted of generals and  one
full colonel, the requirement that all board members be senior to  him
was met; there is no requirement that those members senior to him must
all be general
officers or selects.  In addition to the four voting ADL members,  the
board president was also on the ADL. This  was  sufficient  to  comply
with the membership requirements of Title 10, USC, Section 612.  There
were five board members on the board who  were  on  the  ADL;  nothing
requires that they all be voting members.  In any event,  Section  504
of the FY 2001 National Defense Authorization Act (NDAA) has clarified
that reserve members of active duty selection boards need  not  be  on
the ADL.  There is no longer a requirement  that  five  members  of  a
board be on the ADL.  This amendment applies to boards convened on  or
after 1 Aug  81  (the  effective  date  of  DOPMA)  and  thus  applies
retroactively to the applicant’s board.  Denial is recommended.

A copy of the complete additional evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT’S REVIEW OF THE ADDITIONAL EVALUATION:

The AFPC/JA author fails to set forth any factual or  legal  basis  to
support his opinion.  If indeed, as  the  footnote  acknowledges,  the
pamphlet “table requires clarification,” why has no such clarification
ever been accomplished?  Nowhere in either AFP 36-2506 or AFI  36-2501
is there any exception provided for noncompliance with  this  rule  in
non-line officer selection boards. If such was the case, why has  AFPC
Officer Promotion Branch continued to brief this  requirement  at  the
AFBCMR annual training seminars for the last three calendar years?  It
is most revealing to note that the advisory  author  himself  attended
the 1998 seminar, but has failed to take any steps over the last three
years to correct this policy or briefing.  Further, the  amendment  to
section 612  deals  only  with  the  composition  of  reserve  officer
selection boards, and the  fact  that  Congress  amended  the  statute
dealing  with  reserve  officer  selection  boards  proves  absolutely
nothing as to what Congress’ intent is with respect to regular officer
promotion board compositions.  This tends  to  confirm  that  Congress
clearly understands the importance of continuing “the  5  on  the  ADL
rule” because it specifically chose not  to  amend  the  corresponding
statute that deals with regular officer  selection  boards.   The  Air
Force is bound to follow its own guidance, policies, AFPs, and AFIs.

A complete copy of the applicant’s rebuttal, with  attachment,  is  at
Exhibit I.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, HQ USAF/JAG,  notes  that  Air  Force
Pamphlets are by their very nature informational  and  not  directive,
thus failure to follow a pamphlet does not constitute error.  However,
even if AFP 36-2506 was to be considered directive in nature, the  SAF
has the authority to waive it, which he could be deemed to  have  done
when he approved the board composition.   Section  612  requires  only
that each member of a selection board be serving  in  a  grade  higher
than the grade of the officers being considered.  The Chief also notes
that the fourth paragraph of AFPC/JA’s  advisory  overreaches  in  its
conclusion that the recent amendment to  Section  612  eliminated  the
“requirement that five members of a board be on the ADL.”   While  the
amendment did eliminate this requirement for some boards, it does  not
apply  to  all  boards  and  in  particular,  did  not  apply  to  the
applicant’s board (AFPC/JA now concurs with JAG).   Section  612  does
not expressly require that the five members on the ADL all  be  voting
members.  The Air Force’s interpretation of the law is that the  five-
ADL-member requirement  and  the  five-voting-member  requirement  are
separate requirements.

A complete copy of the evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT’S REVIEW OF THE ADDITIONAL EVALUATION:

He asserts the JAG advisory intentionally fails to explain or  address
HQ AFPC’s briefings at the last AFBCMR conferences  regarding  colonel
promotion board composition. He questions  how  an  officially  issued
policy document, which states  it  is  mandatory  for  all  Air  Force
officers, can instantly become transformed into a mere  informational,
optional policy statement.  The Air Force officer corps and the  Board
have a legitimate right  and  expectation  to  rely  on  the  official
published policies and practices contained  in  Air  Force  pamphlets.
Further, there is  absolutely  no  evidence  that  the  SAF  was  ever
informed of the precise board composition requirements  set  forth  in
AFP  36-2506.   The  JAG  advisory   is   incorrect   in   its   legal
interpretation of the current version of Title 10, USC,  Section  612,
which was amended as part of the 2001 National  Defense  Authorization
Act (NDAA).  The CY98C  board  was  improperly  composed  due  to  the
presence and participation of non-ADL board members, and  the  failure
to have all general officer or  general  officer  selectees  as  board
members.

The applicant’s complete rebuttal, dated 10 Apr 01  and  postmarked  4
May 01, with attachments, is 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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. After a thorough  review
of the evidence of record and the applicant’s submission,  a  majority
of the  Board  is  not  persuaded  that  he  should  be  afforded  SSB
consideration. The applicant’s contentions are  duly  noted;  however,
the majority does not find these assertions,  in  and  by  themselves,
sufficiently persuasive to override the rationale provided by  the  HQ
USAF/JAG advisory opinion. The  majority  therefore  agrees  with  the
recommendations of the Office of The Judge Advocate General and adopts
the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his burden of having  suffered  either
an error or an injustice. In view of the above and  absent  persuasive
evidence  to  the  contrary,  the  majority  of  the  Board  finds  no
compelling basis to recommend granting the relief sought.

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.
_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 3 May and 5 June 2001, under  the  provisions  of
AFI 36-2603:

                  Mr. Henry Romo Jr., Panel Chair
                  Mr. William H. Anderson, Member
                  Mr. John E. B. Smith, Member

By a majority vote, the Board recommended denial of  the  application.
Mr. Anderson recused himself from voting.  The  following  documentary
evidence was considered:

   Exhibit A.  DD Form 149, dated 1 Sep 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPB, dated 18 Sep 00.
   Exhibit D.  Letter, HQ AFPC/DPPPA, dated 22 Sep 00.
   Exhibit E.  Letter, SAF/MIBR, dated 5 Oct 00.
   Exhibit F.  Letter, Applicant, dated 18 Oct 00, w/atchs.
   Exhibit G.  Letter, HQ AFPC/JA, dated 31 Oct 00.
   Exhibit H.  Letter, SAF/MIBR, dated 10 Nov 00.
   Exhibit I.  Letter, Applicant, dated 1 Dec 00, w/atchs.
   Exhibit J.  Letter, HQ USAF/JAG, dated 8 Mar 01.
   Exhibit K.  Letter, AFBCMR, dated 14 Mar 01.
   Exhibit L.  Letter, Applicant, dated 10 Apr 01 (postmarked
                       4 May 01), w/atchs.



                                   HENRY ROMO JR.
                                   Panel Chair





AFBCMR  00-02425





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                        FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency