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


IN THE MATTER OF:      DOCKET NUMBER:  BC-1991-02143

      XXXXXXX    COUNSEL:  Gary R. Myers

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be granted supplemental promotion consideration to  the  grade  of  Chief
Master Sergeant (CMSgt) for all  appropriate  cycles  beginning  with  cycle
90S9.

If he is not selected for promotion to CMSgt  after  supplemental  promotion
consideration, he be provided with the rationale of why he was not  selected
for promotion.

_________________________________________________________________

RESUME OF CASE:

On 19 Dec 91, the Board considered and denied applicant’s  request  to  void
and remove from his records the Airman Performance Report (APR) rendered  on
him for the period 16 Jun 87 through 30 Oct 87 (Exhibit I).

On 28 Nov 95, the Board granted the applicant’s request for removal  of  the
APR closing 30 Oct 87 and granted him supplemental  promotion  consideration
to the grade of CMSgt for all appropriate cycles beginning with  cycle  90S9
(Exhibit P, Tab A).  The  applicant  was  nonselected  for  promotion  after
supplemental consideration.

On 18 May 99, the Board denied a request  from  the  applicant  to  directly
promote him to the grade of CMSgt as if selected during cycle 89S9  (Exhibit
O).

In a letter dated 11 Apr 05, applicant through counsel  makes  the  requests
indicated above (Exhibit P).  Applicant’s counsel opines that the  decisions
in the cases Homer v. Roche and Miller v. Roche stand  for  the  proposition
that a supplemental  board  must  provide  a  rationale  for  its  decision.
Counsel states that the applicant was not provided any rationale for  denial
of his promotion and therefore the proceedings were defective.

_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant  to  the  Board’s  request,  AFPC/JA  provided  an  evaluation   of
applicant’s appeal.  They recommend denial.

They note that this application represents another  in  a  string  of  cases
recently submitted  by  applicants  utilizing  the  same  argument  made  by
applicant’s counsel.  However, this represents  the  first  case  they  have
encountered  wherein  the  counsel  has  applied  the  argument  to  a  case
involving an enlisted promotion.  Curiously, the two federal cases he  cites
both dealt with officer promotions which, unlike the enlisted  promotion  at
issue here, are based on  statutory  provisions.   Both  cases  discuss  the
requirements for special selection boards for  officers  conducted  pursuant
to 10 U.S.C. 628.  In the instant case the supplemental  board  in  question
was not conducted in accordance with 10 U.S.C. 628 or  any  other  statutory
provision.  Rather, it was conducted pursuant  to  AFI  36-2502,  Para  2.5.
That fact alone would distinguish this case from  the  two  cases  cited  by
counsel and render this application questionable at best.

JA notes that 10 U.S.C. 628(b) (2) prescribes how an  SSB  should  make  its
promotion decision:

          • A Special Selection Board convened under paragraph (1) shall
            consider the record of the person whose name was referred to it
            for consideration as that record, if corrected, would have
            appeared to the board that considered him.  That record shall
            be compared with the records of a sampling of those officers of
            the same competitive category who were recommended for
            promotion and those officers who were not recommended for
            promotion, by the board that considered him.

Upon reaching its decision, the statute requires that the SSB “submit to
the Secretary of the military department concerned a written report, signed
by each member of the board, containing the name of each person whose name
was referred to it.”         10 U.S.C. 628(c).  Once the SSB reaches a
decision, review of that decision is available by the Corrections Board
and, thereafter under Section 628, by the Court of Federal Claims or other
competent federal court, as explained below.

In 2001, Congress amended Section 628 of Title 10, which provides the
authority for conducting Special Selection Boards (SSBs), to include a
specific provision authorizing judicial review of SSB decisions.  Public
Law Number 107-107, Section 503(b) (28 Dec 01) allows a federal court to
“review the action of a Special Selection Board… or an action of the
secretary of the military department concerned on the report of such a
board” and to “set aside” such actions if the court finds it was, inter
alia, “arbitrary and capricious” or not “based on substantial evidence.”
In Homer v. Roche, one of the two cases cited by applicant’s counsel, the
court referred to this amendment of Section 628 of Title 10 and noted that
the amendment more appropriately clarified the law regarding the judicial
review authority of federal courts over SSB decisions rather than having
changed it.  The court noted, and they agree, that the standard adopted by
Section 628(g) largely echoes that found in the Administrative Procedures
Act, 5 U.S.C. 701(a)(2), 706.  They note that the courts in Homer, supra,
and Kreis v. Secretary of the Air Force, a case cited by the Homer court,
have held that a request for retroactive promotion would constitute a
nonjusticable military personnel decision.  Thus, a court would be
powerless to act insofar as a plaintiff requesting that court to order a
promotion to a particular rank; the authority to make that decision lies
exclusively with the Air Force and its promotion procedures.

What the court in Homer determined was that the passage of Section 628(g)
(2) of Title 10 “undoubtedly validates that portion of Kreis in which the
D.C. Circuit concluded that the challenges to military promotion decisions
in which the plaintiff merely challenges the military’s justification for
its refusal to promote lies within the power of the federal court to
adjudicate.  The court then went on to state that the discussion makes
clear that the court’s inquiry focuses not on whether the Air Force was
substantively correct not to promote the plaintiff, but rather on whether
the defendant’s explanation for the choice demonstrates that the defendant
permissibly exercised his discretion and made a choice that is supported by
at least substantial evidence.

The real issue is the extent of that review available to the BCMR or a
federal court and the extent of the information that must be furnished by
the SSB to explain its decision.  Applicant’s counsel suggests a detailed
explanation is required by the SSB as to why it did not select this or any
consideree.  However, the United States Court of Appeals for the Federal
Circuit, in Richey v. United States, stated that an SSB is not required to
furnish anything more than the report and certification required by the
statute.  The Court noted, quoting from its decision in Porter v. United
States that “if an officer meets an SSB unsuccessfully and can point to a
material flaw in the SSB’s procedures arguably undermining the SSB’s
nonselection judgment, he may petition the Corrections Board to alter or
void the SSB’s decision.”  This was tried unsuccessfully in the applicant’s
last submission to the Board.  The SSB conducted in the applicant’s case
submitted a report that certified its results in accordance with 10 U.S.C.
628(c) (1) and a court (or the correction board) “could not require the
SSBs to meet additional reporting requirements beyond those that were
mandated by the statute.”

In reading the two cases cited by counsel, it is less than clear from the
court’s opinions whether the board report was ever part of the
administrative record considered by the court.  In fact, the statements by
the court suggest that they were not privy to all of the information that
might have been available.  That information would include the board
report, the first day briefing information provided to board members, the
Memorandum of Instructions that provides the Secretary’s guidance, as well
as the certification by the members of the Board that they followed those
instructions as well as all requirements of the DoD directive, and that
they made all selections in accordance with the instructions.  As a
consequence, the Court determined that the rationale provided by the Air
Force was insufficient and remanded the cases for further action.

To the extent the cases cited by counsel may have required more than
reliance on just the selection board report to satisfy its review
responsibility, the Richey court recognized that even where the statutory
requirements are met, certain circumstances might require a court (or BCMR)
to require further explanation.  However, such review would be limited.
“Because of the presumption of regularity, the agency (in this case Air
Force acting through the SSB) should not be required to provide an
explanation unless that presumption has been rebutted by record evidence
suggesting that the agency decision is arbitrary and capricious.”  As in
Richey, the applicant has not presented any evidence to rebut the
presumption of regularity; hence, no further explanation of the SSB’s
actions is required.

It is AFPC/JA’s opinion that all of the information that explains the
procedures utilized by Air Force enlisted supplemental promotion boards, to
include all provisions of AFI 36-2502, which govern the running of boards,
the Memorandum of Instructions, the first day briefing given to board
members, all other instructions that the board members are furnished, and
the board report and its certification that the board members carefully
considered the record of each person whose name was referred to it, coupled
with the presumption of regularity to which the selection board is
entitled, as discussed above, is sufficient to comply with the requirement
of the case law in the Federal Circuit.  The two cited court cases do not
invalidate in any way the results of the applicant’s previous supplemental
promotion boards and no further supplemental board consideration is
warranted.

The complete evaluation is at Exhibit Q.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response  to  the  Air  Force  evaluation  counsel  states  that  the
situation is actually more confused than the advisory opinion suggests.   He
notes that he is the counsel in both Homer  and  Miller.   Miller  is  still
ongoing.

Counsel opine that the Richey case has  no  application  to  Miller  or  the
applicant’s case.  Richey relates specifically to 10  U.S.C.,  Section  628,
officer SSBs for promotion.  Miller is not an SSB promotion case; rather  it
is an officer SSB for senior service school.  So far the District  Court  in
Miller has not applied Richey.  Counsel believes this is because  the  Court
does not wish to fall under the restrictive language of  Richey  in  a  case
that does not involve an officer promotion SSB.

Applying the  Miller  case  to  the  applicant’s  makes  sense  because  the
applicant, as an enlisted man, does not  fall  under  Richey.   Accordingly,
review under Miller is appropriate  and  broader  than  under  Richey.   The
principals of Miller should be applied to the applicant  and  relief  should
be granted.

Counsel’s complete response is at Exhibit S.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  After reviewing the complete evidence  of  record,  including  counsel’s
assertion that two cited federal court  cases  “stand  for  the  proposition
that a supplemental board must provide rationale for its decision” and  that
since no rationale was provided in the  applicant’s  case,  the  proceedings
were, therefore, defective, we do not find counsel’s  argument  sufficiently
compelling to overcome the counter argument put forth by AFPC/JA.   In  that
regard we accept the opinion and recommendation of AFPC/JA and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of  an  error  or  injustice  warranting  the  relief  requested.
Therefore, we find no basis to change our  previous  determination  in  this
case.

2.  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 issues involved.   Therefore,  the  request  for  a
hearing is still not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 9 November 2005, under the provisions of AFI 36-2603:

      Mr. Charles E. Bennett, Panel Chair
      Ms. Martha Maust, Member
      Ms. Dorothy P. Loeb, Member

The following documentary evidence was considered:

      Exhibit O.  Second Addendum to Record of Proceedings,
                dated 1 Jul 99, w/Exhibits.
      Exhibit P.  Letter, Counsel, dated 11 Apr 05.
      Exhibit Q.  Memorandum, AFPC/JA, dated 24 Apr 05.
      Exhibit R.  Letter, SAF/MRBR, dated 27 May 05.
      Exhibit S.  Letter, Counsel, dated 21 Jun 05.



                                   CHARLES E. BENNETT
                                   Panel Chair