SECOND ADDENDUM TO
                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-1996-02325
            INDEX CODE:  131.09

            COUNSEL:  GARY R. MYERS

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be directly promoted to the grade of colonel.

_________________________________________________________________

STATEMENT OF FACTS:

On 31 Mar 98, the Board considered an application  pertaining  to  the
applicant, in which he requested that he be directly promoted  to  the
grade of colonel with a date of rank (DOR) which the Board  determines
to be proper.  The Board recommended that his records be corrected  to
show that the Promotion Recommendation (PRF),  AF Form  709,  prepared
for consideration by the Calendar Year 1995A (CY95A) Colonel  Chaplain
Board be amended in Section VI, Group Size, to read  "6"  rather  than
"1"; and, that he be considered for promotion to the grade of  colonel
by a Special Selection Board (SSB)  for  the  CY95A  Colonel  Chaplain
Board.  The Director, Air Force  Review  Boards  Agency  accepted  the
Board’s recommendation on 4 May 98.  Complete copies of the Memorandum
for the Chief of Staff and the Record of Proceedings are  attached  at
Exhibit J.

On 25  Apr  00,  and  17  Oct  00,  the  Board  again  considered  the
applicant’s request that he be  directly  promoted  to  the  grade  of
colonel.  A majority of the Board  recommended  that  his  request  be
denied, which was accepted by the Director, Air  Force  Review  Boards
Agency on 26 Dec 00.   Complete  copies  of  the  Memorandum  for  the
Executive Director, AFBCMR, and the Addendum to Record of  Proceedings
are attached at Exhibit K.

Applicant subsequently filed suit in the United States District  Court
for the District of Columbia.  On 22 Oct 02, the case was remanded  to
the  AFBCMR  for  further  proceedings  consistent  with  the  Court’s
decision.  The Court found that the AFBCMR did not adequately  explain
its repeated denial of the applicant’s request for  promotion  to  the
rank of colonel.  The Court also referenced the fact that there was  a
notable absence in the record of  "any  explanation  of  how  the  SSB
exercised its authority and reached its ultimate decision."

A complete copy of the Remand Order and accompanying  memorandum  from
AFLSA/JACL is attached at Exhibit L.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPO provided an advisory opinion with  an  outline  of  the  SSB
procedures as follows:

   •  The record containing the error or injustice is  compared  to  a
      sampling of officer records that “were” and “were not”  selected
      by the original board (“benchmark records”).


   •  The officers who comprise the  SSB  panel  are  not  told  which
      records are the “selects” or “nonselects,” or  which  record  is
      the appeal record.


   •  The SSB panel members score each record presented to them as  if
      it were meeting the original selection board.   Each  record  is
      rated on the “whole person concept,” and scored using a scale of
      6 through 10 (using half-point increments).


   •  An “order of merit” is created based on the scores given by  the
      SSB panel members.   In  order  for  the  appeal  record  to  be
      selected it must out-score all records that  were  “non-selects”
      and tie or beat the score  of  at  least  one  of  the  “select”
      records by the original board.

Regarding SSB promotion opportunity and  selection  rates,  AFPC/DPPPO
indicated that they do not  maintain  or  disseminate  statistics  for
SSBs.  The primary reasons for not maintaining  or  disseminating  SSB
statistics  is  that  contrary  to  Central  Selection   Board   (CSB)
procedures,  there  are  no  quota  limitations  on  SSBs;  therefore,
everyone considered could potentially be selected or  nonselected  for
promotion.  Additionally, maintaining SSB  statistics  may  provide  a
skewed insight to the promotion opportunity derived  from  them.   SSB
procedures are set up to consider the record of the officer (or former
officer), as  that  record  would  have  appeared  to  the  designated
promotion board.  SSB procedures allow the record containing the error
or injustice to be  compared  to  a  sampling  of  records  that  were
“selected” and “not selected” by the original board.  In order for the
appeal record to be selected by the SSB it must out-score all  of  the
records that were “non-selects” and tie or beat the score of at  least
one of the “select” records by the  original  board.   Finally,  while
they do not maintain SSB  statistics  for  Definitely  Promote  ("DP")
selection rates or "DP" upgrades,  they  have  manually  compiled  the
following statistics regarding SSB "DP" upgrades:  From Jan 01 through
Sep 02 there were 24 "DP" upgrades and 12 were selected for  promotion
equating to a 50 percent selection rate.

The promotion opportunity for the CY95 Colonel CSB was 45 percent, the
overall number of  considerees  was  27  in  which  12  of  them  were
selected; therefore, the selection rate was 44.4 percent.  The  number
of considerees who received a "DP" on their  Promotion  Recommendation
Form (PRF) was five (5) in which all (5) were selected; therefore, the
selection rate amongst "DP" considerees was 100 percent.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit M.

AFPC/JA provided an advisory  opinion  addressing  the  statutory  and
legal basis for the SSB promotion process used by the Air Force.

With respect to any request for direct  promotion  by  the  Air  Force
Board for Correction of Military Records, AFPC/JA indicated that  both
Congress and the Department of Defense have made  clear  their  intent
that errors ultimately affecting promotion should be resolved  through
the use of SSBs.  Indeed, the entire scheme for promotion of  officers
in the military established by Congress in Chapter 36 of Title  10  is
restricted solely to the use  of  selection  boards  convened  at  the
discretion of the Secretary (See 10 U.S.C. 611 and 616(d)).   Congress
also established the procedure to  be  followed  where  the  Secretary
determines  that  the  record  of  an  officer  considered   but   not
recommended for  promotion  by  a  selection  board  omitted  material
information, or contained material administrative  or  factual  error.
Under those circumstances, the statute permits the Secretary to submit
the corrected record to an SSB (10 U.S.C. 628(b)).   The  implementing
Department of the Defense (DoD)  Instructions  mirror  that  procedure
(DoD Directive 1320.11, paragraph D.1.), as does Air Force policy (AFI
36-2501, chapter 6).

According to AFPC/JA, Congress requires the composition and procedures
of the SSBs to mirror those applicable  to  central  selection  boards
convened under 10  U.S.C.  611.   Both  boards  must  be  composed  of
commissioned officers on the active duty list who are sworn to perform
their duties as members of  selection  boards  “without  prejudice  or
partiality and having in view both the special fitness of officers and
the efficiency of his armed force” (See 10 U.S.C. 613).

Moreover, Congress requires  that  the  recommendations  of  selection
boards be made on a “best qualified” basis  with  “due  consideration”
for the needs of the service (See 10 U.S.C. 616).  Promotions are  not
made to rectify an error or injustice as to an individual member.   To
the contrary, the Secretary has explicitly stated  that  promotion  is
not a “reward” (See AFI 36-2501, paragraph 2.1).  Rather, the  purpose
of the promotion program is to “select officers  through  a  fair  and
competitive  selection  process  that  advances  the  best   qualified
officers to positions of increased responsibility  and  authority  and
provide the necessary career incentives  to  attract  and  maintain  a
quality officer force” (AFI 36-2501, paragraph 2.1).  In that  regard,
where many good  officers  are  competing  for  a  limited  number  of
promotions, only the best officers can be promoted.  Without access to
all the competing records and an appreciation of  what  those  records
mean—an appreciation gained from years of military  experience—AFPC/JA
stated that they continue to believe the practice of sending cases  to
an SSB is the fairest and best practice.  Historically, the AFBCMR has
considered  direct  promotion   only   in   the   most   extraordinary
circumstances where SSB consideration has been deemed  to  be  totally
unworkable.  In AFPC/JA’s view, the applicant’s case clearly does  not
fall into that category.

AFPC/JA noted that in the recent decision by the United  States  Court
of Federal Claims in  Haselrig  v.  United  States,  No.  99-908C,  53
Fed.Cl. 111 (July 31, 2002), the Court had occasion in a fact  pattern
similar to that in the instant case to review the procedures  utilized
by the  Air  Force  in  conducting  SSBs  and  determined  that  those
procedures constitute a permissible interpretation of the statute  and
a  proper  means  to  carry  out  the  statutory   requirements.    In
particular, the Court determined that the methodology used by the  Air
Force in selecting benchmark records and the scoring requirements were
all proper under both the statute, 10 U.S.C. 628, and  the  applicable
Air Force regulation, AFI 36-2501,  paragraph  6.   In  Haselrig,  the
applicant’s counsel raised an argument that statistical data suggested
unfairness on the part of the SSBs, particularly with respect  to  the
number of officers with “definitely promote” recommendations  promoted
at SSBs versus the number selected at central  selection  boards.   In
response, the Court determined while statistical data  can  raise  the
question of whether or not SSB procedures  may  be  flawed,  the  data
itself is not dispositive of the issue.  Plaintiff must  identify  and
establish a specific flaw in the procedures the SSB used to reach  its
decision in order for  the  Court  to  find  the  SSB  procedures  are
inconsistent with 10 U.S.C., Section 628, and AFI  36-2501,  paragraph
6.1.  The court refused to make such a determination,  having  decided
that the issue is nonjusticiable.  Moreover, the Court determined that
the statistical data presented by the plaintiff in that case  was  not
conclusive evidence that the Air Force’s SSB procedure failed to  make
a “reasonable determination” of whether the plaintiff would have  been
promoted by the original board or that it failed  to  “replicate”  the
procedures of the original selection  board  “to  the  maximum  extent
possible.”  In concluding that the Air  Force’s  SSB  procedures  were
lawful, the Court noted that it  was  not  its  role  to  instruct  an
executive agency  on  how  it  might  better  implement  congressional
direction, only to determine whether or not the Air Force’s  procedure
as actually implemented  was  a  permissible  interpretation  of  both
statutory and regulatory mandates. It determined that it was.

In  this  applicant’s  case,  AFPC/JA  indicated   that   no   special
circumstances were present  that  precluded  the  use  of  a  lawfully
constituted SSB to determine the applicant’s promotability to colonel.
 As noted and rejected by previous courts, the fact that the applicant
may have garnered letters  of  recommendation  from  numerous  sources
(these letters would not be part of any selection record considered by
a promotion board, either at a central board or an SSB)  or  the  fact
that he received  a  definitely  promote  recommendation  warrant  the
imposition of a direct promotion by  the  Correction  Board.   Indeed,
many of the officers  whose  cases  are  ultimately  considered  by  a
special selection board as a result of some correction of errors  have
obtained definitely promote recommendations in the correction  process
that they did not have at the original central  selection  board,  and
such applications to the Correction Board are  oftentimes  accompanied
by  letters  from  various  interested  parties  contending  that   an
injustice has been done and that  the  applicant  deserves  promotion.
Again, the statutory scheme established by Congress promotes  officers
on a best qualified basis, based  solely  on  the  officer’s  properly
constituted selection record.  Selection boards made up of active duty
officers selected by  the  Secretary  are  in  the  best  position  to
determine whether  this  or  any  applicant  is  best  qualified  when
compared to other officers competing for that promotion. As  noted  in
the legislative history of 10 U.S.C. Section 628(b),  the  purpose  of
this  subsection  is  to  provide  a  means  to  make   a   reasonable
determination as to whether the officer would have  been  selected  if
his pertinent records had been properly considered by the prior board,
unfettered by material error.

In AFPC/JA’s view, the irrefutable fact remains that  merely  being  a
victim of  an  error  or  injustice—regardless  of  how  egregious  or
shocking the error or injustice may be—does not  ipso  facto  make  an
officer “best qualified” for a promotion.  By departing from  the  use
of selection boards utilizing “best qualified” criteria for promotion,
the AFBCMR, though well-intentioned, would not only deviate  from  the
statutory scheme, but create unfairness in  the  promotion  system  by
treating disparately officers with material errors in  their  records.
It is patently unjust to demand that some of  those  officers  compete
for promotion on a best qualified basis while allowing  others  to  be
selected by a board of civilians not obliged to use that criteria, and
which has no access to the records of the applicant’s peers.   AFPC/JA
does not believe that Congress ever intended the  corrections  process
to generate such potentially inequitable results.

A complete copy of the AFPC/JA evaluation is at Exhibit N.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, counsel indicated that, in his view, the  SSB  system
is broken and needs to be fixed.  The SSB  must  comply  with  regular
promotion board procedures by comparing the corrected  records  of  an
officer with those of officers both selected and nonselected.  Nowhere
in the statutory or regulatory  scheme  is  there  a  provision  which
permits an SSB to treat a "DP" granted by the AFBCMR differently  from
a "DP" granted by command in the promotion process.  In fact, the  SSB
process is supposed to be blind to how a "DP" was awarded or to  which
record was being reconsidered.  He noted the Air Force statement  that
the officers who comprise the SSB panel are not told which records are
the “selects” or “nonselects,” or which record is the  appeal  record.
In counsel’s view, the statement is a monument to hypocrisy when it is
applied to individuals like the applicant who came before an SSB  with
a "DP" awarded by the AFBCMR.  He believes it is hypocritical  because
in practice, execution, and philosophy such a "DP" has degraded  value
in contravention of the regulatory and statutory scheme.  As proof  of
that hypocrisy, counsel refers to  comments  in  an  advisory  opinion
written by the lawyers  at  the  Air  Force  Personnel  Center,  which
addressed an officer who was denied promotion to lieutenant colonel by
an SSB even though his records were corrected to show  a  PRF  with  a
"DP."  According  to  counsel,  this  official  Air  Force  policy  is
unsupported by law, regulation, or fact.  What is certain is that this
policy infiltrated the entire SSB system.

Counsel indicated that proof positive that corrected "DPs" are in fact
treated  differently  comes  from  data  associated  with  due  course
promotion board results and SSB results.  The "DP" selection rate  for
all Air Force officers in all  specialties  in  due  course  promotion
boards is essentially and frequently actually 100 percent.   A  manual
compilation of SSB "DP" upgrades from Jan 01 through Sep  02  revealed
that of 24 "DP" upgrades, 12 were selected for promotion  equating  to
50 percent.  This is obviously one-half the normal rate and lower than
the mere “promote” due  course  rate.   In  counsel’s  view,  this  is
unconscionable.

Counsel believes that in the face of the indisputable  facts  and  Air
Force policy which is clearly contrary  to  law  and  regulation,  the
AFBCMR is left with no choice but to directly promote  the  applicant.
The AFBCMR can no longer rely upon the Air Force to do  its  job.   It
can either act independently as it is statutorily charged to do, or it
can act in league with this fraud upon the applicant.

Counsel’s complete response, with attachments, is at Exhibit P.

In order to comply with the law to provide an applicant a copy of  all
communications which could directly or materially affect  his  or  her
case, a memorandum from the  Assistant  Secretary  of  the  Air  Force
(SAF/MI) regarding impropriety in the SSB process  (Exhibit Q),  which
will be considered by the Board, was provided to applicant and counsel
for review and comments on 6 Feb 03.  As of this date, no response has
been received by this office (Exhibit R).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Pursuant to the remand order of the United States  District  Court
for  the  District  of  Columbia  that  the  Board  again  review  the
applicant's request for direct promotion to the grade of  colonel,  we
have conducted a  thorough  analysis  of  the  case  file,  which  now
includes advisory opinions outlining the SSB procedures and addressing
the statutory and legal basis for the SSB promotion  process  used  by
the Air Force.  As a result of our more in-depth review,  we  conclude
that there is  sufficient  evidence  of  the  existence  of  error  or
injustice to warrant approval of the applicant’s request for promotion
to the grade of colonel.

2. We have previously asserted our belief that, in order to justify  a
Secretarial promotion, there must be evidence the officer has suffered
an error or  an  injustice,  and  there  is  persuasive  evidence  the
officer's record cannot be fairly considered  by  a  duly  constituted
selection board.  After our further analysis of this case, we  believe
there  is  every  reason  to  conclude  the  applicant's  case  is  so
exceptional,  an  SSB  cannot  reach  a   fair   decision,   and   the
extraordinary solution of a directed promotion is warranted.   AFPC/JA
indicates that by departing from the use of selection boards utilizing
“best qualified”  criteria  for  promotion,  the  Board,  though  well
intentioned, would not only deviate from  the  statutory  scheme,  but
also create unfairness in the promotion system by treating disparately
officers with material errors in their records.  Although the  use  of
selection boards is the Department’s  preferred  method  of  selecting
officers for promotion, United  States  Code,  Part  II,  Chapter  79,
Section 1552 authorizes the Secretary to correct any  military  record
through boards of civilians of the executive  part  of  that  military
department and  we  are  exercising  that  authority  in  making  this
recommendation to the Secretary.

3.    Special Selection Boards have served the Air Force well and  are
fundamentally fair and equitable.  We disagree  with  the  applicant's
counsel that "the SSB  system  is  broken  and  needs  to  be  fixed."
However, there are cases where it is impossible for an SSB to  restore
equity.  This is one of those rare cases.  With four early  lieutenant
colonel reports missing, it is our view the applicant could  not  have
been judged fairly.  As a result of the removal of the OPRs  from  his
record, the applicant competed for promotion to the grade  of  colonel
with only two OPRs in his record with combined rating periods of  less
than 16 months.  Individuals with whom he competed had at least  three
times that many OPRs, on average, which, in our opinion,  precluded  a
fair comparison of the applicant's record  with  the  other  promotion
eligibles.

4.  While we can never be certain, we believe the  evidence  indicates
that a directed promotion to colonel is fairer, both to the  applicant
and the Air Force, than ratifying his  nonselection.   Since,  in  our
view, there is no way for  the  system  as  presently  constituted  to
restore equity,  it  is  imperative  for  this  Board  to  impose  the
extraordinary solution of direct promotion--it is  the  only  possible
way to rectify the injustice in this particular case.  Accordingly, we
recommend the applicant's direct promotion to the  grade  of  colonel.
In arriving at our decision to recommend the applicant's promotion, we
are keenly aware the courts have  held  that  the  Secretary  and  his
Boards have  an  abiding  moral  sanction  to  determine,  insofar  as
possible, the true nature of the alleged injustice and to  take  steps
to grant thorough and fitting relief.

5.  Lastly, we note the  Court's  order  that  the  Board  provide  an
explanation concerning its previous denials of the applicant's request
for promotion to the grade of colonel, to include a thorough review of
the  SSB  procedural   requirements,   the   statute   governing   the
responsibilities of promotion boards, and the promotion board process.
  We  believe  the  offices  of  primary  responsibility  (OPRs)  have
addressed the procedures regarding SSBs and the  statutory  and  legal
basis for the SSB promotion process used by the Air  Force.   And,  in
view of our decision to recommend promotion, the  request  to  explain
our previous denials has been rendered moot.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  He was selected for promotion to the grade of colonel by the
Calendar Year  1995A  Colonel  Chaplain  Board,  and  that  action  be
initiated to obtain Senate confirmation.

      b.  Upon Senate Confirmation, he be promoted  to  the  grade  of
colonel effective and with date of rank as though he had been selected
by the Calendar Year 1995A Colonel Chaplain Board.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
1996-02325 in Executive Session on 18 Jun 03, under the provisions  of
AFI 36-2603:

      Mrs. Barbara A. Westgate, Chair
      Mr. Robert S. Boyd, Member
      Ms. Carolyn B. Willis, Member

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

     Exhibit J.  Memorandum for the Chief of Staff, dated
                 4 May 98, w/atchs.
     Exhibit K.  Memorandum for Executive Director, AFBCMR, dated
                 26 Dec 00, w/atchs.
     Exhibit L.  Letter, AFLSA/JACL, dated 28 Oct 02, w/atch.
     Exhibit M.  Letter, AFPC/DPPPO, dated 3 Dec 02.
     Exhibit N.  Letter, AFPC/JA, dated 12 Dec 02.
     Exhibit O.  Letter, AFBCMR, dated 2 Jan 03.
     Exhibit P.  Letter, counsel, dated 27 Jan 03, w/atch.
     Exhibit Q.  Letter, SAF/MI, dated 20 Dec 99.
     Exhibit R.  Letter, AFBCMR, dated 6 Feb 03.




                                   BARBARA A. WESTGATE
                                   Chair










AFBCMR BC-1996-02325




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 , be corrected to show that:

            a.  He was selected for promotion to the grade of colonel
by the Calendar Year 1995A Colonel Chaplain Board, and that action be
initiated to obtain Senate confirmation.

            b.  Upon Senate Confirmation, he be promoted to the grade
of colonel effective and with date of rank as though he had been
selected by the Calendar Year 1995A Colonel Chaplain Board.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency