RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 00-03178 (Cs #2)
                             INDEX CODE 131.10  131.01
                             COUNSEL:  Guy J. Ferrante

                             HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonselection for major by the Calendar Year 1994A (CY94A)  Central
Selection Board (CSB) be deleted and he be  restored  to  active  duty
status in the Regular Air Force.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His nonselection was erroneous and unjust because  he  was  forced  to
compete against officers who had unauthorized and  illegal  stratified
“Top Promote” (TP) recommendations on their  Promotion  Recommendation
Forms (PRFs).  He was denied an equal opportunity to earn a coveted TP
recommendation [on his PRF] by the arbitrary and inconsistent way  the
TP system was applied throughout  the  Air  Force  commands.   The  TP
system  was  unauthorized,  illegal  and  not  uniformly  applied.   A
Management Level Evaluation Board (MLEB) added TP  statements  to  the
PRFs of selected officers after its evaluation  of  their  records  of
performance.  The senior rater’s  promotion  recommendation  was  then
modified accordingly.  In doing so,  an  MLEB  usurps  senior  raters’
“sole” responsibility and authority to  evaluate  the  officers  under
their command and complete  their  PRFs.   An  MLEB  exceeds  its  own
regulatory authority by modifying senior raters’ evaluations  with  TP
recommendations.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 17 May 83. During the  period  in
question, he was a captain assigned to the 9th Airlift Squadron  (AMC)
at Dover AFB, DE, as a C-5 instructor aircraft commander.

The applicant was considered but not selected  for  promotion  by  the
CY94A board, which convened on 22 Aug 94.  The PRF considered  by  the
board had an overall recommendation of “Promote.”

On 13 Mar 95, he voluntarily applied to separate under the  provisions
of the PALACE CHASE program.  His application was approved for  PALACE
CHASE separation after  an  assignment  with  the  Air  Force  Reserve
Component was verified.  He was released from an active  duty  service
commitment and separated on 16 May 95 with 12 years of active service.


Although the applicant’s DD Form 149 is dated 2 May  00,  it  was  not
received by SAF/MIBR, the AFBCMR intake office at Randolph AFB,  until
28 Nov 00.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPRSR  notes  that  the  applicant  voluntarily  applied  to
separate under  the  provisions  of  the  PALACE  CHASE  program.  His
separation program designator of “FGQ” (Interdepartmental Transfer) is
correct.  He did not include any new evidence or identify  any  errors
or injustices that occurred in the  discharge  processing.  Denial  is
recommended.

A copy of the complete evaluation, with attachments, is at Exhibit C.

HQ  AFPC/DPPPE  advises  that  TP  recommendations  were  indeed  made
inappropriate by the 15 Mar 95 Chief of Staff message  effective  with
the CY95A board. They indicate the applicant has not provided adequate
documentation. It is entirely the senior rater’s decision  whether  to
stratify or, in this case, not.  Because  of  the  highly  competitive
promotion process, many times lack of stratification is an avenue  the
senior rater will choose to send the “message” to the  MLEB/Management
Level Review (MLR) or to the CSB that this officer is outstanding, but
not as good as other officers currently under his  command.  Based  on
the facts, they have no  way  to  ascertain  whether  the  applicant’s
senior rater intentionally did not  stratify  in  the  PRF  (which  is
entirely  his  prerogative),  or   it   was   merely   an   oversight.
Additionally, there’s no way to verify that others  he  competed  with
did have unauthorized TP  recommendations  on  their  PRF.  Therefore,
disapproval is recommended.

A copy of the complete evaluation is at Exhibit D.

HQ AFPC/JA indicates the applicant offers no specific evidence of  how
the “stratification” system harmed him. He has not cited evidence that
he was improperly denied a MAJCOM “stratification” designator or  that
he would have been promoted but for the “stratification” system.   The
Air Force promotion recommendation process is based on regulation, not
statute or Department of Defense (DOD) directive.   Consequently,  the
legality of the 1994 promotion recommendation process under review  is
determined by the extent to which that process conformed  to  and  was
consistent with applicable directives.  Without  question,  AFR  36-10
did  not  prohibit  the  “stratification”  process  about  which   the
applicant complains. No  applicant  has  produced  evidence  that  the
stratification process itself violated any provision of AFR 36-10.  As
in all cases, the senior rater made the final determination  regarding
the  content  of  the  PRF,  consistent  with  AFR  36-10;  thus,  the
“stratification” process did not violate the regulation.  Although the
Air Force Chief of Staff did eliminate the  stratification  system  in
1995 because of concern  over  a  perception  of  unequal  application
across commands, this does not  establish  illegality.   Finally,  the
applicant was not forced to leave active duty.  He did so  voluntarily
and the Air Force waived a two-year active  duty  service  commitment.
This voluntary separation and the benefit the applicant garnered  from
it diminish any claim of error  or  injustice  and  make  a  call  for
restoration to active duty uncompelling.  Denial is recommended.

A copy of the complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded to counsel on  2 Feb
01 for review and comment within 30  days.   On  10  Mar  01,  counsel
requested that his client’s case be temporarily withdrawn until he was
able   to   respond.   Accordingly,   the   applicant’s    case    was
administratively closed on 20 Mar 01. On 8 Aug 02,  the  AFBCMR  Staff
received counsel’s 31 Jul 02 rebuttal and the case was reopened.

Counsel takes exception to the three  evaluations,  claiming  in  part
that the Air Force illogically contends  that  nothing  can  be  found
illegal if it isn’t illegal already.  The question is whether the “Top
Promote” process was unauthorized and contravened  AFR  36-10  as  the
applicant maintains. The answer is  not  that  the  process  is  legal
because no one has ever said that it was illegal; the  answer  is  for
the Board to determine after evaluating the process in  light  of  the
clear  and  unambiguous  language   of   AFR   36-10.   HQ   AFPC/JA’s
representation fails to explain how senior raters could make the final
determination  regarding  the  content   of   the   PRF   when   those
determinations were, by definition and design, made  by  MLEBs.   They
also apply an illegal standard of proof in that the applicant does not
need  to  prove  that  he  would  have  been  promoted  but  for   the
stratification system. The applicant’s  active  duty  career  suffered
because, without any regulatory authority, commands throughout the Air
Force arbitrarily implemented an ill-conceived  process  in  order  to
enhance their officers’ promotion prospects. The circumstances of  the
applicant’s PALACE CHASE separation neither aggravated nor ameliorated
the underlying injustice that precipitated his separation in the first
place.

A complete copy of counsel’s rebuttal, with attachment, is 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 error or injustice. After a thorough  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded that his nonselection for major by the CY94A board should be
set aside and he be reinstated to  active  duty  in  the  Regular  Air
Force. Counsel alleges, in part, that the  stratification  system  not
only was illegal but also  its  inconsistent  application  harmed  the
applicant because he was not identified in any of the top  categories.
However,  counsel  has  not   substantiated   his   claim   that   the
stratification identifier in 1994 was illegal  or  that  anyone  other
than the senior rater  made  the  final  determination  regarding  the
content of the PRF. Even if for the sake of argument we were to  agree
that the stratification  process  at  that  time  violated  regulatory
provisions, which we do not, or that it  was  inconsistently  applied,
counsel has not established that the applicant should have received  a
“Top  Promote”  recommendation  or  was  wrongfully  deprived   of   a
promotion. In view of the above and absent persuasive evidence to  the
contrary, the applicant has failed to sustain  his  burden  of  having
suffered either an error  or  an  injustice.  Therefore,  we  find  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.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 22 August 2002 under the provisions  of  AFI  36-
2603:

                       Mr. Richard A. Peterson, Panel Chair
                       Mr. Laurence M. Groner, Member
                       Mr. George Franklin, Member

The following documentary evidence relating to AFBCMR Docket  No.  00-
03178 was considered:

   Exhibit A.  DD Form 149, dated 2 May 00 (Received 28 Nov 00),
                   w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRSR, dated 9 Jan 01, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPPPE, dated 24 Jan 01.
   Exhibit E.  Letter, HQ AFPC/JA, dated 24 Jan 01.
   Exhibit F.  Letter, SAF/MRBR, dated 2 Feb 01.
   Exhibit G.  Letter, Counsel, dated 31 Jul 02, w/atch.




                                   RICHARD A. PETERSON
                                   Panel Chair