RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02531
                                     (CASE 2)
            INDEX CODE:  131.05

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________


APPLICANT REQUESTS THAT:

His date of rank to lieutenant colonel be adjusted as if he  had  been
selected and promoted by the CY99A  (19  Apr  99)  Central  Lieutenant
Colonel Selection Board instead of  the  CY99B  (30  Nov  99)  Central
Lieutenant Colonel Selection Board.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The  Definitely  Promote  (DP)  recommendation  he  received  on   his
Promotion Recommendation Form (PRF) for the P0599A Lieutenant  Colonel
Promotion Board was unfairly and arbitrarily discounted by the Special
Selection Board (SSB) that considered him for promotion to  lieutenant
colonel  following  his  nonselection  for  promotion  by  the  P0599A
selection board.

In support of his request, applicant submits a personal statement  and
a copy of his P0599A PRF.  In addition, he submits a copy of an AFBCMR
letter concerning his previous case (99-01992), dated 29 Feb 02,  with
the Directive and his DD Form 149, and a copy of  an  SAF/MRB  letter,
dated  25  Jun  02.   The  applicant’s   complete   submission,   with
attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
8 May 83.  He is currently serving on active  duty  in  the  grade  of
lieutenant colonel, with an effective date and date of rank of  1  Feb
01.

Applicant's OPR profile for the last 8 reporting periods follows:

            Period Ending    Evaluation

                1 Dec 94     Meets Standards (MS) - grade of Major
                1 Dec 95         MS
                1 Dec 96         MS
                1 Jun 97         MS
            #  21 Apr 98         MS
            ## 21 Apr 99         MS
               21 Apr 00         MS
               21 Apr 01         MS - grade of Lieutenant Colonel
               21 Apr 02         MS

# Top report at the time he was  considered  below-the-promotion  zone
(BPZ) and nonselected for promotion to lieutenant colonel by the CY99A
(P0599A) Central Lieutenant Colonel Selection Board, which convened on
19 Apr 99.

## Top report at the time  he  was  considered  in-the-promotion  zone
(IPZ) and selected for promotion to lieutenant colonel  by  the  CY99B
(P0599B) Central Lieutenant Colonel Selection Board, which convened on
30 Nov 99.

On 8 Feb 00, the AFBCMR considered and  recommended  approval  of  the
applicant's request that he be reconsidered for promotion to the grade
of lieutenant colonel by an SSB for the CY99A (19 Apr  99)  Lieutenant
Colonel Selection Board, with inclusion of the citations for the Joint
Service Commendation Medal (JSCM) and the  Meritorious  Service  Medal
(MSM) First Oak Leaf Cluster (1OLC) in his  officer  selection  record
(OSR).  On 29 Feb 00, the Deputy for Air Force Review Boards  directed
the applicant’s  records  be  corrected  as  stated  and  that  he  be
considered for promotion to the grade of lieutenant colonel by an  SSB
for the CY99A Lieutenant Colonel Selection Board  and  any  subsequent
boards in which the corrections were not a matter of record.   A  copy
of the Record of Proceedings (ROP),  Docket  Number  99-01992,  is  at
Exhibit B.

The applicant currently has an established date of separation (DOS) of
30 Jun 03.

Provided for the Board’s information is a copy of a SAF/MI memorandum,
dated 20 Dec 99, concerning a similar assertion (Exhibit F).
_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPO, recommends the applicant’s request for direct promotion
be denied.  DPPPO indicated that  the  applicant  was  considered  and
nonselected for promotion to the grade of lieutenant colonel by the 15
May 00 SSB for the P0599A (BPZ) selection board  due  to  two  missing
citations from his OSR when he met the board.  DPPPO stated  that  the
applicant has not provided conclusive  evidence  to  show  his  record
contained comments and recommendations not rendered in good  faith  by
evaluators based on the knowledge available at the  time.   Therefore,
there is no basis for granting direct promotion.   Both  Congress  and
DoD have made clear their intent that when  errors  are  perceived  to
ultimately affect promotion, they should  be  addressed  and  resolved
through the use of Special Selection Boards (SSBs).  Without access to
all the competing records and an appreciation of their content,  DPPPO
continues to believe the practice of sending  cases  to  SSBs  is  the
fairest and best practice.  The applicant’s record was found in error,
corrected and subsequently met an SSB, but he  was  not  selected  for
promotion.  His case clearly does not warrant  direct  promotion,  nor
does it  warrant  further  SSB  consideration.   Other  than  his  own
opinions,  the  applicant  has  provided  no  substantiation  to   his
allegations.  The HQ AFPC/DPPPO evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion  and  indicated  that  the
advisory writer completely ignores the injustice that he has  alleged:
that  his  SSB  unfairly  discounted  his  Definitely   Promote   (DP)
recommendation based on a long-standing bias and practice of  assuming
that DPs at SSBs are gratuitous “freebies” not to be accorded much, if
any, weight.  It was the advisory writer’s predecessor  who  used  the
term “freebie DP” in describing how DPs are viewed by SSBs before  the
assembled AFBCMR at the  board’s  annual  seminar.   He  has  provided
evidence that his SSB unfairly discounted his  DP  by  describing  the
presentation made by the advisory writer’s predecessor (Lt  Col  C---)
before the assembled board.  The advisory writer does not  refute  his
statements describing Lt Col C---’s presentation to  the  board.   Nor
does he even discuss the subject of  her  presentation.   Tacitly,  by
failing to deny, he acknowledges the truth about “freebie  DPs.”   The
advisory writer asks the Board to blindly accept that all is well with
the manner in which SSBs are conducted in the apparent hope  that  the
board will not see fit to render a decision in his case  which  should
cause his organization to carefully review how SSBs are conducted and,
in particular, what SSB members are told about how  they  should  view
DPs.  In his case, the Board should do this by adjusting his  date  of
rank as though selected by the P0599A central selection board.  If  he
had been promoted earlier, he would be eligible to retire in grade  as
a Lt Col at  the  completion  of  his  unaccompanied  tour  in  Korea.
According to current law, he must  have  three  years’  time-in-grade.
The applicant’s complete submission is at Exhibit E.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL COMMUNICATION:

The applicant was provided a copy of a 20 Dec 99 SAF/MI memorandum for
review (Exhibit F).

The applicant reviewed the additional SAF/MI memorandum and noted that
the prior case is very similar to his application.  He indicated  that
this prior case is significant  for  two  important  reasons:  (1)  It
anecdotally shows that  many  officers  with  DP  recommendations  are
treated unfairly at SSBs.  (2) It shows that members of the Board  who
have confronted this issue in the past have  recognized  the  inherent
injustice in a system which would promote 99.2% of  officers  with  DP
recommendations unless, through no fault of their own,  they  have  to
take their DP  recommendations  before  an  SSB,  in  which  case  the
promotion rate is dismally low notwithstanding the outstanding records
of the officers  in  question.   SAF/MI  dismisses  the  “freebie  DP”
comment as of no corroborative value because it did not come from  the
office of primary  responsibility  (OPR)  for  the  officer  promotion
process.  His “freebie DP” comment does, in fact, come  from  the  OPR
for the officer promotion process.   In  the  final  analysis  of  his
application,  it  is  clear  that  the  statistical   data   and   the
acknowledgements  from  the  officer  promotion  process  OPR  of  the
“freebie DP” problem  show  that  the  SSB  process  is  fundamentally
unfair.  He met an SSB with a DP recommendation and  did  not  have  a
fair chance.  It should not matter that he  was  competing  below-the-
zone, the process was unfair.  He was entitled, at least,  to  a  fair
SSB; however, he did not get one.  He therefore asks  that  the  Board
grant the requested relief.  The applicant’s complete response  is  at
Exhibit G.

In further review of the  SAF/MI  memorandum,  he  draws  the  Board’s
attention to the opinion of the United States Court of Federal  Claims
in the case of another individual (Mr. H---), filed 31 Jul  02,  which
addresses a claim very similar to his.  In assessing Mr. H--‘s  claim,
the Court stated that “while statistical data can raise  the  question
of whether or not SSB procedures may be flawed, the data itself is not
dispositive on the issue.”  As the Court later opines, “Plaintiff must
identify and establish a specific flaw in  the  procedures  that  SSBs
used to reach its decision in order for the  court  to  find  the  SSB
procedures are inconsistent with 10 USC, Section 628, and AFI 36-2501,
paragraph 6.1.”  His case represents more  than  statistics.   In  his
case, he has presented an  admission,  by  the  former  chief  of  the
appeals and SSB branch at HQ AFPC, that SSBs unfairly  discounted  DPs
on the theory that they were gratuitous and not competitively  earned.
She also referred to these DPs as  “freebie  DPs”  before  the  entire
assembled AFBCMR in acknowledging the problem of which  he  complains.
This admission is evidence in support of his case  which  allows  more
than mere speculation  based  on  statistics.   It  is  evidence  that
explains the statistics and gives them meaning.  He believes  this  is
why  SAF/MI  took  such  great  pains   to   work   around   AFPC/JA’s
“troublesome” use of the “freebie DP” term, dismissing it  as  not  of
legal importance  because  AFPC/JA  was  not  the  office  of  primary
responsibility for promotions.  He urges the Board  to  recognize  the
injustice which took place in his case and  the  cases  of  many  fine
officers who met SSBs with DPs.  The applicant’s complete  submission,
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 timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  We have carefully considered the
applicant’s complete submission in judging the  merits  of  the  case.
The applicant’s numerous assertions concerning  the  legality  of  the
promotion recommendation process  and  the  legality  of  the  Special
Selection Board (SSB) process are duly  noted.   However,  we  do  not
believe  the  evidence  substantiates  that  he  was  not  fairly  and
equitably considered for promotion to lieutenant colonel by an SSB for
the CY99A selection board.  We can understand  his  disappointment  in
not being selected; however, we are  unpersuaded  that  he  should  be
promoted to the grade of lieutenant colonel through the correction  of
records process.  Other than  speculation  based  on  the  unfortunate
statement concerning  Definitely  Promote  (DP)  recommendations,  the
applicant has submitted no corroborative evidence to show that he  did
not receive a full and fair consideration for promotion  by  the  duly
constituted SSB.  Nor has he provided any evidence  to  indicate  that
the SSB members did not  perform  their  sworn  duty  and  arbitrarily
discounted his DP recommendation.  The  evidence  presented  does  not
convince us that  the  applicant’s  consideration  for  promotion  was
contrary to the pertinent provisions  of  the  governing  instruction,
which implements the law.  In the selection process, officers  compete
for promotion under  the  whole  person  concept  whereby  Performance
Recommendation Forms (PRFs) are but one of many  factors  assessed  by
selection boards.  An officer may be qualified but, in the judgment of
a  duly  constituted  selection  board,  vested   with   discretionary
authority to score the records, may not be the best of those  officers
determined to be  better  qualified  within  the  constraints  of  the
promotion quota.  Since promotion  quotas  diminish  significantly  as
officers compete for higher grades, the particular grade at  issue  is
also a consideration.  We find no evidence that the applicant did  not
compete fairly with his peers, the previous AFBCMR  corrective  action
notwithstanding.  Based on  the  above  and  in  view  of  the  fierce
competition for promotion to the grade of lieutenant colonel,  placing
the corrected record before an SSB was, in the  Board’s  opinion,  the
appropriate course of action in this case.  In view of  the  foregoing
and in the absence of corroborative evidence of impropriety in the SSB
process, we find no compelling basis to recommend granting the  relief
sought in this application.
_________________________________________________________________

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 27 Mar 03, under the provisions of AFI 36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Ms. Rita J. Maldonado, Member
                  Mr. Laurence M. Groner, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2002-02531.

   Exhibit A.  DD Form 149, dated 29 Jul 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPO, dated 21 Nov 02.
   Exhibit D.  Letter, SAF/MRBR, dated 27 Nov 02.
   Exhibit E.  Letter from Applicant, dated 11 Dec 02.
   Exhibit F.  Letter, AFBCMR, dated 25 Feb 03, w/atch.
   Exhibit G.  Letters from Applicant, dated 3 Mar 03, w/atch,
                 and 12 Mar 03, w/atch.




                                   RICHARD A. PETERSON
                                   Panel Chair