RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  00-03171
                                  INDEX CODE:  131.00
                                  COUNSEL:  Mr. Guy J. Ferrante

                                  HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be directly  promoted  to  the  grade  of  lieutenant  colonel.   In  the
alternative,  he  requests  that  his  Officer  Performance  Reports  (OPRs)
closing on 2 May 90 and 14 Jun 91, be corrected to reflect that he  received
Professional Military Education (PME) recommendations in  Section  VII,  and
he be considered for  promotion  to  the  grade  of  lieutenant  colonel  by
Special Selection Board (SSB).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Due to irregularities in its preparation, his 1993 Promotion  Recommendation
Form (PRF) was upgraded to a Definitely Promote (DP) and he  was  considered
and not selected by SSB in November 1996.  The SSB applied an excessive  and
unrealistic   selection   standard,   was   given   illegal   discriminatory
instructions, and considered a personnel record that  did  not  portray  his
career on a fair, equitable, or accurate basis.

Because AFI 36-2501 requires his  SSB  score  to  exceed  that  of  all  the
nonselect benchmarks in order  for  him  to  be  selected,  if  a  nonselect
benchmark received the highest score from the SSB,  it  was  impossible  for
him to be promoted even if his record was deemed superior  to  all  five  of
the officers who were selected  by  the  original  board.   His  chances  of
promotion by SSB were considerably lower because of several  facets  of  the
promotion process.  First, no two groups of board  members  will  score  the
same record the same way.  Second, the benchmark  records  are  chosen  from
the "gray zone" of the original board, which was comprised of  records  that
had to be successively re-scored just to  differentiate  them.   Third,  the
benchmarks were the best five select and nonselect  records  from  the  gray
zones.  While regular promotion board candidates compete with random  cross-
sections of their peers, SSB candidates compete against the  best  from  the
entire regular promotion board.  Fourth,  when  a  record  is  re-scored  by
members of an SSB who view its quality  more  consistently,  that  nonselect
benchmark  will  receive  a   much   higher   than   expected   score   more
representative of a select benchmark and make the reconsideree’s chances  of
selection much more difficult than at the original  board.   He  would  have
had a 99.9 percent  chance  of  selection  by  the  CY93  board  with  a  DP
recommendation.  He had a 21 percent chance of selection by  the  SSB.   The
difference being attributable to the  higher  standard  that  SSBs  require.
SSBs do not replicate the  actions  of  regular  promotion  boards  and  the
applicant was not validly reconsidered in a fair, equitable, and  reasonably
accurate way.

Because he is  a  non-minority  male,  the  equal  opportunity  instructions
provided to the SSB denied him the objective promotion consideration he  was
entitled  to  by  law  and  violated  his  constitutional  rights  to  equal
opportunity and equal protection of the law.

After he was notified of his SSB nonselection, the applicant wrote  to  AFPC
and requested a copy of the Officer Selection Record  (OSR)  that  had  been
considered.  His OSR contained several obvious errors.  It  contained  three
OPRs that he did not receive  until  after  the  original  1993  board,  the
Officer Selection Brief (OSB) indicated that he had  a  date  of  separation
(DOS) of 31 May 98 when in fact the DOS was not established until after  the
1993 board, and the OSB reflected three assignments and  corresponding  duty
titles that did not  apply  until  after  the  1993  board.   Moreover,  the
corrected PRF  had  bold  notations  in  both  margins  highlighting  it  as
documents that were corrected in 1996.  An SSB’s objective is  to  replicate
the action of the original board and consider an officer’s  record  as  that
record, if corrected, would have appeared to the board that considered  him.
 His record was prejudicially spotlighted as the one being  reconsidered  by
the simple fact it included information from after the  timeframe  that  the
SSB was considering.

On his 2 May 90 and 14 Jun 91 OPRs, the raters made PME  recommendations  in
the appropriate  sections.   However,  neither  the  additional  raters  nor
reviewers made PME recommendations.  The applicant obtained the  support  of
the additional raters and  reviewers  to  add  PME  recommendations  to  the
reports and submitted an appeal to  the  Officer  Personnel  Records  Review
Board (OPPRRB).  His appeals were denied as untimely  for  the  1990  report
and on the grounds that no specifics were provided about the  error  in  his
1991 report.  He was denied PME recommendations  that  he  deserved  by  the
admitted errors of others, over whom he had  no  control.   Worse  yet,  the
lack of follow-through on the two OPRs actually  made  it  appear  that  the
additional  raters  and   reviewers   disagreed   with   the   rater’s   PME
recommendation.

In support of  his  request,  applicant  provided  his  counsel’s  brief,  a
talking paper dated 7 Jan 84,  documents  associated  with  his  Freedom  of
Information Act (FOIA) request, his CY93A PRF, a memorandum from his  former
commander,  his  OSB,  and  documents  associated  with  his   request   for
correction of his 2 May 90 and 14 Jun 91  OPRs.   His  complete  submission,
with attachments, is at Exhibit A.

_________________________________________________________________
STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Regular Air Force,  on  31  May
78 and was voluntarily ordered to extended active duty on  that  same  date.
The applicant was considered and not selected for promotion to the grade  of
lieutenant colonel by the CY93A, CY94A, CY96C, and CY97C lieutenant  colonel
boards.  As a result of correction to his CY93A PRF, he was  considered  and
not selected by SSB for that same board.  The  applicant  retired  from  the
Air Force on 1 Jun 98, in the grade of major.  He had served 20 years and  1
day on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial.  DPPPE states that willingness  by  evaluators
to change or void a report is not a valid reason for doing so  unless  there
is  clear  evidence  of  error  or  injustice  involved.  Lack  of   a   PME
recommendation on an OPR is not an error.  While the PME  statement  may  be
appropriate it is not mandatory.  No new evidence is provided for the  Board
to consider (see Exhibit C).

AFPC/DPPPO recommends the application be time-barred.  If the Board  decides
to consider the application on its own merits, then denial  is  recommended.
DPPPO states that the applicant states  that  he  received  a  copy  of  his
record  from  AFPC/DPPBR1  (Records  Section).   That  office   would   have
forwarded a copy of his original OSR  that  is  maintained  in  the  records
section, the PRF would have been retrieved from the master personnel  record
and would have displayed the correction statements.  However,  if  he  would
have requested his OSR from the correct office, AFPC/DPPPAB  (SSB  Program),
he would have  received  his  OSR  as  it  appeared  before  the  SSB.   The
additional documents would not have been included.  The OSB he provided  was
a copy of the OSB that was considered by the CY96 board, which at that  time
would have rightfully displayed his established  DOS.   In  September  1992,
procedures for preparing corrected documents  for  SSB  OSRs  were  altered.
Policy was implemented to mask the correction statements from the  documents
that have been corrected  subsequent  to  the  original  board.   The  DPPPO
evaluation, with attachment, is at Exhibit D.

AFPC/DPPB poses no objection to SSB consideration if  the  Board  determines
his OSR contained errors as it met the SSB.  However, recommends  denial  of
direct promotion.  DPPB states  that  because  benchmark  records  are  very
similar in quality, it  is  not  unusual  to  have  some  inversion  in  the
benchmark order of merit 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  or  even  second
highest score, the nonselect benchmark record and  consideree’s  record  are
returned for re-scoring.  If the consideree’s record scores higher than  the
nonselect benchmark, the consideree will be a select.  SSB members  are  not
informed which records are  benchmark  records.   Therefore,  his  claim  is
without merit.  He refers to a talking paper that was accomplished 17  years
ago.  A subsequent talking paper written 31 Mar 86, more accurately  conveys
the criteria for selecting benchmark records.  Despite the verbiage used  in
the 7 Jan 84 talking  paper,  current  procedures  for  selecting  benchmark
records have been unchanged over the years and are in full  compliance  with
applicable guidelines.  DPPB does not agree with  his  contention  that  the
SSB was given discriminatory instructions.  Just as  the  central  selection
board memorandum of instructions (MOI) addresses  minorities,  so  does  the
SSB MOI.  Both state that all officers must be afforded fair  and  equitable
consideration.  The DPPB evaluation, with attachment, is at Exhibit E.

AFPC/JA recommends denial.  JA states the  Air  Force  cannot  recreate  the
central board in the SSB process, nor is it required to  do  so  by  law  as
counsel seems to imply.  What is required is that a fair  playing  field  in
which the applicant is given another look to see if correcting  his  records
would have made a any difference in the promotion  process.   The  governing
statute does not prescribe a particular procedure or method to  be  used  in
operating SSBs.  The procedure in place since the  implementation  of  DOPMA
which has been sanctioned by the Secretary of the Air Force and  the  Office
of the Secretary of Defense has never (to their knowledge) been ruled  by  a
court  to  be  unlawful,  represents  a  legitimate  exercise  of  personnel
management authority that is not inconsistent with the  governing  law,  and
fully comports with the requirements 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.   The  burden  is  on  the  applicant  to  prove
otherwise, and he has failed to do so.

The statistics provided by  the  applicant  are  limited  to  one  group  of
officers who were considered in one calendar year.  They do not represent  a
compilation or average of all Air Force SSBs.  There is no  way  of  knowing
why the statistical groups cited by the applicant’s  counsel  were  selected
at the rates they were.  A promotion recommendation, be it a DP or  anything
else, is just that, a recommendation.  It does not guarantee  promotion  and
is but one factor that the board  will  consider  in  examining  a  member’s
entire record to determine who is best qualified.  A DP given as part  of  a
correction process will not necessarily end up carrying the same  weight  as
a DP during the regular promotion process.   The  fact  that  his  corrected
record garnered a DP in the correction process does not mean  that  had  his
record been correct to begin with he would have been assured  a  DP  in  the
first instance.  In that environment, he would have had  to  compete  for  a
limited number of available DPs, whereas the  DP  he  received  was  awarded
without any real constraint on numbers.  The DPs were  not  controlled,  and
giving a DP to an individual did not take it  away  from  anyone  else.   An
individual’s record may not have been strong enough to have  garnered  a  DP
in a true competitive environment, yet may have  convinced  a  senior  rater
that it should be upgraded in the correction scenario.

His nonselection is not evidence of an illegality or  shortcoming  with  the
SSB process employed by the Air Force, but rather  reflects  the  fact  that
his corrected record, even with a DP was simply not strong  enough  to  beat
the requisite benchmark records (see Exhibit F).
_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel states that the Soldiers’ and Sailors’  Civil  Relief  Act  of  1940
states that the time one spends in active military service is excluded  from
time within which an action must be initiated in any court of  board.   Thus
the 3-year statute of  limitations  did  not  effectively  begin  until  the
applicant’s retirement in June 1998.  DPPPE and DPPPO’s  argument  that  the
application should be time-barred is wrong.

The applicant is not trying to change his OPRs as indicated  by  DPPPE,  but
trying to correct them.  His additional raters and reviewers state that  the
lack of PME recommendations was the result of an  error.   DPPPE  criticizes
the applicant for submitting no new evidence.  New evidence is not  required
before submitting an appeal to the AFBCMR.  His appeal of the 1990  OPR  was
denied on the grounds of timeliness, without regard for the evidence he  had
submitted.

The applicant received a copy of his OSR from DPPRB1 that specified "a  copy
of your OSR that met the CY 1997 SSB."  One would expect  the  Chief,  Board
Support Branch knows the difference between a regular  promotion  board  and
an SSB and that he would have the insight to understand his request.   DPPPO
admits that it no longer has  access  to  the  applicant’s  records.   Their
recommendation is therefore based on an assumption.

There is no evidence supporting DPPB’s claim  that  the  Secretary  reviewed
and approved the  SSB  procedures  of  determining  promotees.   Secretarial
approval is no guarantee of legality or fairness.  If so there would  be  no
occasion  of  judicial  review  of  administrative  actions.   Even  if  the
Secretary did approve the procedure, it was  done  unilaterally,  presumably
on the recommendation of AFPC.   There  is  no  assurance  that  he  or  she
considered any of the factors introduced  by  the  applicant.   If  the  SSB
scores a single non-select benchmark  better  than  the  original  promotion
board, a reconsideree cannot be  promoted.   Even  if  all  agree  that  his
record is better that all five of the benchmark records that were  promoted.
 It does not matter how many times the records are scored when  the  bar  is
set too high to allow a fair and reasonable determination of  promotability.
 DPPPB claims an inability to address a 17-year old  talking  paper  on  the
criteria for selecting benchmarks, and offers a 15-year  old  talking  paper
that they say is more accurate.   However,  DPPPO  fails  to  specify  which
parts of the 15-year old talking paper are more  accurate  or  explain  what
the selection criteria really are.
SSBs may not have to perfectly recreate the central board, but they have  to
"replicate central selection boards...to the maximum extent  possible."   JA
ignores that the applicant was a member of  the  group  of  statistics  that
were provided.  He was one  of  those  that  had  a  21  percent  chance  of
promotion rather than a 99.9 percent  chance.   That  fact,  in  itself,  is
sufficient to prove that he failed to receive fair and reasonable  promotion
reconsideration that Congress expected.  When  two  different  boards  apply
the same criteria and use the same scoring scale,  the  logical  explanation
for the vastly different conclusions that they reach is  the  excessive  SSB
standard.  JA attempts to undermine the applicant’s  DP  recommendation.   A
new  senior  rater  reviewed  his  entire  record  and  agreed  that  a   DP
recommendation was warranted, the Management Level  Review  (MLR)  President
reviewed and agreed with the recommendation following procedures  prescribed
in AFR 36-2401.  Without a hint of having seen the  applicant’s  record,  JA
accuses them of supporting an undeserved DP.  The applicant is not  claiming
that the SSB members did  not  perform  their  sworn  duty;  but  that  they
unlawfully applied an excessive standard  that  effectively  precluded  them
from making the reasonable decision that Congress  envisioned  and  expected
when enacting 10 U.S.C.

As the Court of Appeals noted, although the  equal  opportunity  instruction
"on its face permitted, and even  encouraged,  if  not  actually  commanded"
preferential treatment for  women  and  minorities,  the  Court  of  Federal
Claims had stated  that  its  conclusion  "may  well  have  been  different"
without the assurances it received from the Air Force.  When the  Air  Force
withdrew the assurances, it totally undermined and eviscerated the  decision
that the Court of Federal Claims had reached.  JA seeks  to  derive  support
from a precedent that does not exist.

DPPPO opposes direct promotion "absent clear  cut  evidence  he  would  have
been selected by the CY93 board."  This is  the  wrong  standard  to  apply.
The correct standard is whether he can receive meaningful relief  otherwise.
 Notwithstanding JA’s dissembling discussion about  theoretical  differences
between  DP  recommendations,  the  fact  remains  that  the  applicant  was
determined to have  deserved  a  DP  recommendation  in  1993.   If  he  had
received one, it is 99.9 percent certain that he would  have  been  promoted
at that time.  With the upgraded  DP  recommendation  that  was  awarded  in
1996, an SSB that even remotely recreated the  competition  of  the  regular
board would assuredly have selected  him  for  retroactive  promotion.   His
nonselection is evidence that  the  SSB  did  not  operate  as  intended  by
Congress or  that  the  DP  recommendation  he  received  in  1996  did  not
effectively remedy the error that he suffered in 1993.  Direct promotion  is
the only meaningful and effective relief to be granted.  In further  support
of his request,  counsel  provided  his  brief,  documents  associated  with
applicant’s request for his OSR, a letter from  the  MLR  President,  and  a
FOIA request.  His complete submission, with attachments, is at Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence  of  probable  error  or  injustice  warranting  the   applicant's
promotion to lieutenant colonel through the correction of  records  process.
His allegations concerning the Special Selection  Board  (SSB)  process  are
duly noted, however, in our opinion the Air Force has  adequately  addressed
those allegations.  Therefore, we agree with the opinion and  recommendation
of the Air Force office of primary responsibility and adopt their  rationale
as the basis for our conclusion that he has not been the victim of an  error
or injustice in this matter.

Notwithstanding  the  above,  the  applicant   states   that   his   Officer
Performance Reports (OPRs) closing on 2  May  1990  and  14 June  1991  were
erroneous because the PME recommendations from  his  additional  raters  and
reviewers were inadvertently omitted.   In  support  of  his  contention  he
provided credible evidence from the additional raters and  reviewers,  which
support his  claim  that  the  omissions  were  indeed  errors.   Given  the
unequivocal support  from  the  senior  officers  involved,  and  having  no
plausible reason to doubt their integrity in this matter,  we  believe  that
correction of his OPRs is warranted.  As a consequence  of  the  above,  his
records were not correct at the time he was considered for promotion to  the
grade of lieutenant colonel by the selection boards  in  question.   In  our
opinion, the most appropriate and fitting relief is to place  his  corrected
record before an SSB  for  consideration  for  promotion  to  the  grade  of
lieutenant colonel.  Accordingly, we recommend his records be  corrected  to
the extent indicated below.

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  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 AF Form 707A, Officer Performance  Report,  rendered  for  the
period 13 July 1989 through 2  May  1990,  be  amended  in  Section  VII  to
include the remark "Select for SSS" in the last line.

      b.  The AF Form 707A, Officer Performance  Report,  rendered  for  the
period 3 May 1990 through 14  June  1991,  be  amended  in  Section  VII  to
include the remark "--after Senior Service School" added to the last line.

It is further recommended that he be considered for promotion to  the  grade
of lieutenant colonel by Special  Selection  Board  for  the  Calendar  Year
1993A Lieutenant Colonel Selection Board, and for any subsequent boards  for
which the above corrected Officer Performance Reports were not a  matter  of
record.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 18 Dec 01, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. Jay H. Jordan, Member
      Ms. Martha Maust, Member

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

     Exhibit A.  DD Form 149, dated 24 Apr 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPE, dated 8 Jan 01.
     Exhibit D.  Letter, AFPC/DPPPO, dated 31 Jan 01.
     Exhibit E.  Letter, AFPC/DPPB, dated 7 Feb 01.
     Exhibit F.  Letter, AFPC/JA, dated 23 Mar 01.
     Exhibit G.  Letter, SAF/MIBR, dated 6 Apr 01
     Exhibit H.  Letter, Counsel, dated 9 Nov 01, w/atchs.




                             THOMAS S. MARKIEWICZ
                                             Vice Chair

AFBCMR 00-03171




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 AF Form 707A, Officer Performance Report,  rendered  for
the period 13 July 1989 through 2 May 1990, be amended  in  Section  VII  to
include the remark "Select for SSS" in the last line.

            b.  The AF Form 707A, Officer Performance Report,  rendered  for
the period 3 May 1990 through 14 June 1991, be amended  in  Section  VII  to
include the remark "--after Senior Service School" added to the last line.

      It is further directed that he be  considered  for  promotion  to  the
grade of lieutenant colonel by Special  Selection  Board  for  the  Calendar
Year 1993A Lieutenant  Colonel  Selection  Board,  and  for  any  subsequent
boards for which the above corrected Officer Performance Reports were not  a
matter of record.









  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency