RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-1999-00459
            INDEX CODE:  131.01

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

By amendment, he be directly  promoted  to  the  grade  of  lieutenant
colonel  as  though  selected  by  the  Calendar  Year  1992B  (CY92B)
Lieutenant Colonel Central Selection Board, with back pay, allowances,
benefits, and adjustment of retired pay.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While assigned to the 55th Wing, he was not afforded a fair  promotion
opportunity by the Department of the Air Force (DAF)  or  Headquarters
Air Combat Command (HQ ACC), who created a deliberately discriminatory
environment toward some  officers.   Majors  in  the  55th  Wing  were
identified for discriminatory treatment through the promotion process.
 This inequitable treatment resulted in the loss of pay and  benefits,
as well as the opportunity for  continued  service.   Upon  discovery,
they pursued a course of action that perpetuated this injustice.

HQ ACC found that inappropriate information or procedures were used in
preparing each Promotion Recommendation Form (PRF) presented to boards
on his  behalf.   These  flawed  records,  when  considered  with  the
biasness of DAF and HQ ACC against the 55th Wing officers, meant  that
he had no prospect of promotion.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, statements from the HQ ACC commander, and  other  documents
associated with the matter under review.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force,
on 23 May 76, and was voluntarily ordered to extended active duty.  He
was integrated into the Regular Air Force on 21 Dec 83 in the grade of
captain.

Applicant's  Officer  Performance  Report  (OPR)  profile  since  1983
follows:

      PERIOD ENDING    EVALUATION

      19 Nov 83              1-1-1
      19 Nov 84              1-1-1
      15 Jun 85              1-1-1
      14 Aug 86              1-1-1
      29 Jun 87              1-1-1
      11 Jan 88              1-1-1
      30 Mar 89              Meets Standards
      30 Aug 89              Meets Standards
      30 Aug 90              Meets Standards
      28 Jul 91              Meets Standards
  #  28 Jul 92               Meets Standards
 ##   1 Jun 93               Meets Standards

 # Top Report at the  time  he  was  considered  and  nonselected  for
promotion to the grade of lieutenant colonel by the  CY92B  Lieutenant
Colonel Board.

## Top Report at the  time  he  was  considered  and  nonselected  for
promotion to the grade of lieutenant colonel by the  CY93A  Lieutenant
Colonel Board.

On 31 Aug 94, the applicant was relieved from active duty and retired,
effective 1 Sep 94, in the grade of major.  He was  credited  with  17
years, 5 months, and 3 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPA recommended denial indicating the applicant has provided no
evidence he was treated unfairly by the  promotion  system.   However,
should  the  Board  decide  he  is  entitled  to   further   promotion
opportunity, they believe a Special Selection Board (SSB)  constituted
of senior  officers  is  the  most  appropriate  method  by  which  to
determine the applicant’s suitability to  serve  in  the  next  higher
grade when compared to his peers.

A complete copy of the AFPC/DPPPA evaluation is at Exhibit C.

AFPC/DPPPE  recommended  denial  indicating  the  HQ  ACC   took   the
appropriate measures to ensure officers assigned to the 55th Wing were
given a fair and impartial review.  During the review process, HQ  ACC
reconstructed records of performance to look as they did in 1992/1993.
 When PRFs were unavailable, they were rewritten.   This  ensured  all
officers  were  afforded  a  fair  opportunity  during   the   review.
According to AFPC/DPPPE, the applicant did not provide any evidence to
refute this opinion.  They stated their historical files regarding the
55th Wing relook was reviewed and they found that  a  sound  plan  was
developed and approved by the Air Force  Deputy  Chief  of  Personnel.
Proper  guidelines  were  established  and  enforced  by   Air   Force
leadership.  Great effort was put forth by all levels in the Air Force
to ensure that all  affected  officers  received  fair  and  equitable
treatment.  In their view, the relook  was  handled  appropriately  in
accordance with Air Force policy, and that the applicant has failed to
provide any evidence to support his claims of unfair treatment.

A complete copy of the AFPC/DPPPE evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  applicant  on
4 Oct 02 for review and response.  By letter, dated  23  Oct  02,  the
applicant  requested  that   his   case   be   temporarily   withdrawn
(Exhibit G).

By application, dated 28 Aug 03, the  applicant  provided  a  response
indicating that he  was  again  reasserting  his  request  for  direct
promotion to the grade of lieutenant colonel.  His  justification  for
this request is the proof that each promotion opportunity afforded him
during  the  early  1990s  was  flawed,  prejudiced,   and   illegally
discriminatory.

Applicant’s complete response, with attachments, is at Exhibit H.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA indicated they  could  find  no  error  with  respect  to  the
allegations of improper treatment of majors by the Air Force  in  1992
or of allegedly improper PRF processes.  Should  the  Board  determine
there has been an error or  injustice  concerning  the  Memorandum  of
Instruction (MOI) used at the  applicant’s  1992  and  1993  promotion
boards, AFPC/JA recommends that the applicant be offered a review by a
Special Selection  Board  (SSB)  or  other  special  board  as  deemed
appropriate.

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

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant  indicated  the  facts  he  has  outlined  in   his   appeal
demonstrates the extraordinary circumstances that are created when the
normal promotion system  cannot  be  trusted  to  render  a  fair  and
impartial decision or corrective measures actually  address  the  real
causes of error in the system.

Applicant’s complete response is at Exhibit K.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice to  warrant  providing  the  applicant
promotion consideration by SSBs.  We took note of the decision of  the
U.S. Court of Appeals for the Federal  Circuit  in  Berkley  that  the
special instructions to  the  selection  boards  erroneously  required
differential treatment of officers, based on their  race  and  gender.
In view of the court’s findings,  and  since  the  Air  Force  is  not
appealing that decision,  we  recommend  the  applicant’s  records  be
corrected to the extent indicated below.

4.     Notwithstanding  the  above,  we  find  insufficient   relevant
evidence has been presented to demonstrate the existence  of  probable
error or injustice to warrant the applicant’s promotion to  the  grade
of lieutenant colonel through the correction of records  process.   In
this regard, the Board observes that officers  compete  for  promotion
under the whole person concept  whereby  many  factors  are  carefully
assessed by  selection  boards.   An  officer  may  be  qualified  for
promotion but, in the judgment of a selection board  vested  with  the
discretionary authority to make the selections, may not  be  the  best
qualified of those available  for  the  limited  number  of  promotion
vacancies.  Therefore,  in  the  absence  of  clear-cut  evidence  the
applicant would have been a selectee,  a  duly  constituted  selection
board  applying  the  complete  promotion  criteria  is  in  the  most
advantageous position to render this vital determination, and that its
prerogative to do  so  should  only  be  usurped  under  extraordinary
circumstances.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be considered for promotion  to  the  grade  of
lieutenant colonel by Special Selection Boards (SSBs) for the Calendar
Years 1992B and 1993A Lieutenant Colonel Central Selection Boards.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2003-
03400 in Executive Session on 26 Feb 04, under the provisions  of  AFI
36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. James W. Russell, III, Member
                       Ms. Kathleen Graham, Member

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

    Exhibit A.  DD Form 149, dated 12 Feb 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPA, dated 11 Jun 99.
    Exhibit D.  Letter, AFPC/DPPPE, dated 17 May 99.
    Exhibit E.  Letter, SAF/MRBR, dated 28 Jun 99.
    Exhibit F.  Letter, applicant, dated 3 Aug 99.
    Exhibit G.  Letter, AFBCMR, dated 17 Aug 99.
    Exhibit H.  DD Form 149, dated 28 Aug 03, w/atchs.
    Exhibit I.  Letter, AFPC/JA, dated 23 Dec 03.
    Exhibit J.  Letter, SAF/MRBR, dated 9 Jan 04.
    Exhibit K.  Letter, applicant, dated 20 Jan 04.





                                   THOMAS S. MARKIEWICZ
                                   Chair


AFBCMR BC-1999-00459




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 considered for promotion to the grade of
lieutenant colonel by Special Selection Boards (SSBs) for the Calendar
Years 1992B and 1993A Lieutenant Colonel Central Selection Boards.






     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency