RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2002-01781
            INDEX CODE 131.01  102.08
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to the grade of colonel with an effective date prior to
31 Aug 66 with appropriate compensation.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied eligibility for promotion to colonel  when  others,  who
had served in less demanding positions, were promoted to  that  grade.
That denial resulted in his serving as a lieutenant colonel (LTC)  for
11 continuous years without ever being eligible for consideration  for
promotion.

After his permanent commission [in 1955] as a LTC, it  was  recognized
that a vast majority of permanent commissions granted after World  War
II (WWII) were given to officers who were commissioned during  wartime
and whose promotion list service dates (PLSD)  were  closely  grouped.
The condition was considered undesirable and action to eliminate  what
was defined as a  “hump”  in  the  retirement  dates  was  taken.  The
retirement dates were to be adjusted by awarding  additional  unearned
“time served” to deserving officers. As a result, he was “rewarded” by
adjusting his PLSD from the actual time of his commissioning  in  1943
back to August 1938.  This meant that if he was promoted  to  colonel,
he could retire with full benefits at the end  of  30  years  at  1968
instead of 1973.  As a LTC, he would be retired in 1966,  rather  than
1971.

Shortly after his promotion to LTC, another  promotion  board  met  to
promote permanent LTCs to the grade of colonel. It was announced  that
only those permanent LTCs who had served as  temporary  full  colonels
for at least one year would be considered. When the decisions of  that
promotion board were announced, it was also announced that any officer
whose PLSD was earlier than the latest PLSD of any  officer  promoted,
such an officer would be considered as having been passed over and any
officer who was passed over was ineligible for any future promotion to
either temporary or permanent colonel. His “reward” of five  years  of
promotion list service had placed him into that category  of  officers
permanently  ineligible  for  promotion.  In  the  last  year  of  his
assignment at MacDill AFB, the vice commander of Strike  Command  told
him he would be selected for colonel because his earlier ineligibility
had been cancelled  and  the  vice  commander  was  going  to  be  the
president of the colonel promotion board.

However, he was not selected and the  vice  commander  explained  that
General L-- told the  promotion  board  they  would  not  promote  any
Regular officer who was scheduled for mandatory retirement within five
years. As a LTC with approximately three and one-half years  remaining
before he could be retired,  he  was  not  considered.  General  L--’s
arbitrary decision resulted in his becoming a victim of discrimination
which has lasted more than 35 years.  If he had  not  been  “rewarded”
with five years of unearned years of promotion list service, he  would
have been promoted because his mandatory  retirement  date  would  not
have made him ineligible.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

According to HQ AFPC/DPPPO, all permanent promotions  in  the  Regular
Air Force were  made  in  accordance  with  Public  Law  381  (Officer
Personnel Act of 1947), as  amended,  and  other  related  laws  which
provided for mandatory promotion upon completion of certain prescribed
years of service and also for  promotion  to  fill  vacancies  in  the
various  grades.  Public  Law  737  (Armed  Forces   Regular   Officer
Augmentation Act of 1956) was approved on 20 Jul 56. This  Law  caused
the strength of the Regular Air Force to be increased from  27,500  to
69,425. Recomputation of the promotion list service  of  approximately
2,100 officers appointed after 31 Dec 47 was accomplished and  special
orders announcing new PLSDs and dates of ranks (DORs) were  published.
In 1957, Public Law 737 authorized additional promotion  list  service
to Regular Air Force officers.  This promotion list  service,  not  to
exceed 2 years, was to be awarded under regulations prescribed by  the
Secretary.  Under such regulations, officers who  had  PLSDs  in  1937
through 1943 received an adjustment. Announcement of  the  adjustments
in promotion list service of approximately 11,750 officers was made on
10 Dec 57.

The applicant enlisted in the Regular  Army  on  17  Feb  41  and  was
honorably discharged on 5 Sep 43 to  accept  a  commission  as  a  2nd
lieutenant on 6 Sep 43, when he  also  entered  active  duty.  He  was
promoted to the grade of 1st lieutenant on 23 Jun 44 and captain on 22
Mar 45. He was appointed to  the  Army  Reserves  on  29  Oct  45  and
released from active duty on 6 Jan 46. He was ordered to  active  duty
on 7 Aug 46, appointed to the Regular Army in the grade of captain  on
19 Jun 47, and discharged on 2 Jul 47 to  be  integrated  in  the  Air
Force on 3 Jul 47 in the grade of 1st lieutenant. He was  promoted  to
the permanent grades of captain on 25 Oct 48 and major on 31 Dec 49.

The applicant was selected for promotion by the  permanent  LTC  board
that convened on 6 Jul 55 and promoted to that grade effective 12  Aug
55.

According to HQ  AFPC/DPPPO’s  advisory  opinion  at  Exhibit  F,  the
applicant was considered for the grade of  colonel  by  the  following
promotion boards:

            20 Jun 60  Permanent Colonel (Regular)
            12 Jun 61  Regular Colonel
            27 Nov 61  HQ USAF Temporary Colonel
            11 Jun 62  Regular Colonel
             3 Dec 62  Temporary Colonel Nomination
            10 Jun 63  Regular Colonel
             8 Jul 63  Temporary Colonel Nomination, FY64
            14 Sep 64  Central Temporary Colonel, FY65
            24 May 65  Regular Colonel
            13 Sep 65  Central Temporary Colonel, FY66
            20 Jun 66  Regular Colonel

The applicant was retired in the grade of 1 Sep 66 in the grade of LTC
with 24 years, 11 months and 14 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPO advises  that  Public  Law  737  provided  that  certain
officers within the so called “hump” area be given  up  to  two  years
additional promotion and retirement credit to provide for an even flow
of  promotions  and  retirements.  In  addition,  new  officers   were
appointed from Reserve and civilian status to bring the strength up to
the new authorization.  Some of these new officers who fell within the
“hump” area were also given additional  service  credit  on  the  same
basis as those officers currently in the Regular Air Force.

HQ AFPC/DPPPO believes, based on the eligibility  criteria  they  have
reviewed, the applicant would have been first considered for promotion
to colonel in 1960. On reviewing the promotion eligibility of officers
meeting boards between 1958 and 1965,  the  only  “deferred”  officers
ineligible for  promotion  consideration  were  those  officers  twice
deferred to captain, major and lieutenant colonel. In  addition,  only
those officers who had a date of separation approved that  was  within
two years of the board convening date were  ineligible  for  promotion
consideration.    The   applicant   has   not   provided    sufficient
documentation to support his claim that  he  was  not  considered  for
promotion to colonel. There is no provision  in  policy  or  law  that
supports his contention that deferred officers were not  eligible  for
promotion or that  those  officers  who  were  within  five  years  of
mandatory retirement would not be promoted. Thousands of officers were
affected by the adjustments to PLSDs. Therefore, they do  not  believe
he was the victim of discrimination. Promotion to the grade of colonel
was and remains highly selective. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends the advisory does not explain how  he  obtained
five years of additional promotion list service. Items d.  and  e.  in
the evaluation specify a limit of two years to be awarded. Without the
award of five years of additional promotion list service, he would not
have been  mandatorily  retired  in  1966.  These  five  years  had  a
significant affect on his failure to  be  promoted  to  the  grade  of
colonel. He asserts that had he really been considered  for  promotion
in 1960 as the advisory indicates, he would  have  been  promoted.  He
believes a major reason for his being passed over was that  the  board
was not permitted to consider officers  who  had  not  served  in  the
temporary grade of colonel for at least one full  year.  That  earlier
“pass over” was recognized later when  he  was  assured  he  would  be
promoted to colonel but then made  a  victim  of  discrimination  when
General L-- told the board they could not  consider  any  officer  for
promotion to the grade  of  colonel  who  was  within  five  years  of
mandatory retirement.

A complete copy of  applicant’s  response,  with  attachments,  is  at
Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORE EVALUATION:

HQ AFPC/DPPPO advises that a temporary promotion is an advancement  in
active duty grade accomplished by means of  a  temporary  appointment,
with a specified date of rank, in the higher  grade.   For  a  Regular
officer, a temporary promotion is an active duty promotion in  advance
of his permanent promotion to the same grade.  A  permanent  promotion
is an advancement in an officer’s Reserve grade.  After reviewing  the
standard  operating  procedures  (SOP)  for  computing  PLSDs,   DPPPO
believes the applicant’s dates are correct.  There  is  no  indication
that the amount of service could not have been over  four  years.  The
SOP provides an adjustment based on  credit  for  all  active  Federal
commissioned service and age, and additional  credit  under  the  Hump
adjustment.  Although there is nothing specific that explains the Hump
adjustment, DPPPO believes this was additional credit given  to  those
officers who were already an officer of the Regular Air Force  at  the
time of enactment of the title and may have already had over 13  years
promotion list service on 31 Dec 57.

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

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

The applicant concludes there is nothing specific in the HQ AFPC/DPPPO
advisory that explains the “Hump” adjustment, so no  one  can  explain
why he was awarded five years of promotion list service in lieu of the
customary two  years.   Had  he  received  the  normal  two  years  of
adjustment, he would not have been declared ineligible  for  promotion
when General L--  arbitrarily  instructed  the  promotion  board  that
officers within five  years  of  mandatory  retirement  would  not  be
promoted, nor would he have  been  mandatorily  retired  earlier  than
1969.  He  asserts  the  definitions  for  temporary   and   permanent
promotions included in the advisory are not the same as  the  ones  in
effect during his tour of duty. His permanent grade of captain  tended
to delay his temporary promotion to major and lieutenant colonel,  for
commanders were reluctant to “waste” a quota on a regular officer  who
could expect an early permanent promotion. He explains why he believes
he was not eligible for promotion  by  the  promotion  boards  listed,
contrary to the advisory’s assertions. General L--’s statement to  the
promotion board made him a victim of discrimination.

A complete copy of the applicant’s rebuttal, 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 error or injustice.  After a thorough review  of  the
evidence of record and applicant’s submission, we  are  not  persuaded
that he should be promoted to the grade of colonel with  an  effective
date prior to 31 Aug 66. The applicant’s contentions are  duly  noted;
however, we do not  find  these  assertions,  in  and  by  themselves,
sufficiently persuasive to override the rationale provided by the  Air
Force. Promotion to the grade  of  colonel  is  and  always  has  been
extremely competitive and not guaranteed. The applicant has failed  to
show that he was not considered for promotion to that grade,  or  that
he was discriminated  against  and  treated  differently  than  others
similarly affected by the service credit policy in effect at the time,
or that his records were so superior to his peers that  his  promotion
to  colonel  was  incontrovertible.  We  therefore  agree   with   the
recommendations of the Air Force and adopt 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,  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 20 March 2003 under the  provisions  of  AFI  36-
2603:

                             Mr. Joseph G. Diamond, Panel Chair
                             Mr. Mike Novel, Member
                             Ms. Jean A. Reynolds, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2002-01781 was considered:

   Exhibit A.  DD Form 149, dated 17 May 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPO, dated 18 Sep 02.
   Exhibit D.  Letter, SAF/MRBR, dated 27 Sep 02.
   Exhibit E.  Letter, Applicant, dated 8 Oct 02, w/atchs.
   Exhibit F.  Letter, HQ AFPC/DPPPO, dated 8 Jan 03, w/atchs.
   Exhibit G.  Letter, SAF/MRBR, dated 17 Jan 03.
   Exhibit H.  Letter, Applicant, dated 10 Feb 03, w/atchs.



                                   JOSEPH G. DIAMOND
                                   Panel Chair