RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03350
            INDEX CODE:  131.01
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered for  promotion  to  the  grade  of  lieutenant  colonel  by
Special Selection Board (SSB) for the Calendar Year  1997E  (CY97E)  Central
Lieutenant Colonel Selection Board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Based on an  earlier  AFBCMR  application  he  was  considered  by  SSB  for
promotion to lieutenant colonel and was not  selected.   The  primary  error
and injustice that occurred in  his  nonselection  was  the  fact  that  his
former senior rater was a voting member of the SSB.  In  his  earlier  case,
his senior rater failed to include  Professional  Military  Education  (PME)
recommendations on the Promotion Recommendation Forms (PRFs) for all  majors
and lieutenant colonels meeting In-the-Primary  Zone  (IPZ)  boards  in  the
fall of 1997.  The senior rater corrected the administrative error  and  all
the officers affected received SSB consideration for promotion.   The  other
two officers considered for promotion to  lieutenant  colonel  by  SSB  were
selected for promotion prior to his SSB being approved.   The  senior  rater
was aware that  they  had  been  selected  prior  to  serving  on  his  SSB.
Accordingly, to the extent  that  either  of  their  records  were  used  as
comparatives at his SSB, the former senior rater knew  that  the  other  two
officers were not the consideree who had been granted that  particular  SSB.
His knowledge of this "inside information" that was  not  available  to  the
other board members, deprived him of a fair  and  impartial  SSB  panel  and
constituted an administrative  error  and  injustice.   His  presence  as  a
voting member violated the board instructions which state "Each of  you...is
responsible to maintain the integrity and  independence  of  this  selection
board, and  to  foster  the  careful  consideration,  without  prejudice  or
partiality, of all eligible officers."   Upon  seeing  the  records  of  the
other two officers and along with his, he should have recused himself or  at
least sought the advice from the board president.

In addition, the board instructions contain an illegal and  constitutionally
impermissible  instruction  that  gives  unfair  advantage  to   women   and
minorities.  Applicant is referring to the case  of  Berkley,  et  al.,  vs.
United States.  The Court in this case determined that this  instruction  is
unconstitutional.

In support of his request, applicant provided a copy  of  the  board  member
list, his original PRF and corrected PRF, and a copy  of  the  board  member
instructions.  Applicant’s complete  submission,  with  attachments,  is  at
Exhibit A.

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STATEMENT OF FACTS:

While serving on active  duty,  he  was  considered  and  not  selected  for
promotion to lieutenant colonel by the CY97B,  CY97E,  and  CY99A  selection
boards.  He was separated from active duty on 25 Oct  99  and  is  currently
serving in the Air Force  Reserves  in  the  grade  of  lieutenant  colonel,
having assumed that grade with a date of rank of 1  Oct  01.   He  currently
has 23 years of satisfactory Federal service.

On 19 Jun 98, applicant submitted an appeal to  the  Board  contending  that
there were numerous errors  on  his  Officer  Selection  Brief  (OSB).   His
records were corrected and on 19 May 99, he was provided  SSB  consideration
for the CY97B and CY97E lieutenant colonel  selection  boards  and  was  not
selected.

Subsequent to his SSB nonselection, he submitted  an  additional  appeal  to
the Board requesting direct promotion to the grade  of  lieutenant  colonel,
contending that the composition of the board that originally considered  him
violated statutory provisions by failing to consist of five or  more  voting
members on the active duty list and contending that an  Officer  Performance
Report in his record had a typewritten notation to advise  readers  that  he
was previously promoted through the SSB process.  His request was denied  by
the Board.

In another appeal to the Board the applicant provided a  corrected  PRF  and
requested that he be granted SSB  consideration  for  the  CY97E  lieutenant
colonel selection board.  He contended that his senior  rater  inadvertently
omitted PME attendance on the PRF. The Board granted his request and he  was
considered and not selected by an SSB on 3 Dec 01.

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AIR FORCE EVALUATION:

AFPC/DPPB recommends denial.  DPPB states that the officer was qualified  to
serve on the SSB and was administered the oath prescribed by 10  U.S.C.  and
took no action to excuse himself from the board.  In addition,  DPPB  states
that the verbiage in the instructions to his SSB has been  modified  and  is
not the same as the verbiage in the Berkley case.  The  DPPB  evaluation  is
at Exhibit C.

AFPC/DPPPO recommends denial.  DPPPO states that applicant has  provided  no
proof to support his claim that the two other officers  in  his  year  group
were benchmark records considered by the board.  Even if this were true,  he
failed to establish how he was prejudiced in any way.  The JAG career  field
is small and it is not unusual for one or more board members  at  any  given
SSB to know all or some of the considerees.  This has never been  considered
as a disqualifying factor.  Moreover, the  board  members  are  required  to
take an oath and are told that if at any time they believe  they  cannot  in
good conscience perform their duties  as  a  member  of  the  board  without
prejudice of partiality to request relief from their duty.

Beginning in 1998, the verbiage of the Memorandum of  Instructions  provided
to selection boards and SSBs was changed to delete  the  cited  instruction.
Therefore, his request does not fall under the Berkley decision.  The  DPPPO
evaluation is at Exhibit D.

USAF/JAG recommends  denial.   JAG  states  that  it  was  not  a  statutory
violation for the applicant's  former  senior  rater  to  serve  as  an  SSB
member.  In fact, as a practical matter, it isn't  unusual  to  have  senior
raters, regardless of competitive category, serve as board  members.   Given
the relatively small size of the JAG competitive category the senior  raters
seniority  among  0-6  judge  advocates,  it  was   not   only   statutorily
permissible, but was entirely  appropriate  for  him  to  serve  as  an  SSB
member.  The applicant's inference that his  knowledge  of  the  applicant's
identity as well and  facts  and  circumstances  of  his  case  led  to  his
nonselection is pure speculation, unsupported by any evidence.

The revised Memorandum of Instruction was presented to the  applicant's  SSB
and did not create either a  constitutionally  objectionable  classification
or benefits or burdens  for  competitors  in  the  board  process.   He  has
already received the benefit of the Berkley case by having been  granted  an
SSB that was conducted under the auspices of the revised  instruction.   The
JAG evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In the applicant's responds he reiterated his  contentions  and  added  that
the Air Force usually employs the "Consecutive Board"  rule  when  assigning
senior officers to sit as voting members of promotion  boards.   This  means
that the same senior officer  may  not  sit  on  two  consecutive  promotion
boards considering the records of any given consideree.  In the same  spirit
of the "Consecutive Board"  rule,  his  senior  rater  should  have  recused
himself.  Although he  did  not  sit  on  his  previous  board,  he  was  so
intimately involved in his case that he  had  special  background  knowledge
that was not available, and rightly should not have been available,  to  the
other board members.  His complete submission 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  took  notice  of  the  applicant's
complete submission in judging the merits of the case.  However, we are  not
persuaded by his assertion that the presence of his former senior  rater  as
a voting member of the SSB panel, led to his denial of  a  fair  opportunity
to compete successfully for  promotion.   In  addition,  we  note  that  the
verbiage of the Memorandum of Instructions was changed  in  1998,  prior  to
his consideration for promotion by SSB on 19 May 99.   Therefore,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not been the victim of an  error  or  injustice.   In
the absence of evidence to the contrary, we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

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  Docket  Number  BC-2002-03350
in Executive Session on 6 May 03, under the provisions of AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Mr. Vaughn Schlunz, Member
      Ms. Mary J. Johnson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPB, dated 23 Dec 02.
    Exhibit D.  Letter, AFPC/DPPPO, dated 16 Jan 03.
    Exhibit E.  Letter, USAF/JAG, dated 31 Jan 03.
    Exhibit F.  Letter, SAF/MRBR, dated 7 Feb 03.
    Exhibit G.  Letter, Applicant, dated 3 Mar 03.




                                   ROSCOE HINTON, JR.
                                   Panel Chair