RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-00941
                             INDEX CODE  131.01
                       COUNSEL:  None

                             HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Officer Selection Brief (OSB) for the  Calendar  Year  2001B
(CY01B) Lieutenant Colonel (LTC) Central Selection Board be amended to
reflect his joint duty assignments (JDA) at the  Defense  Intelligence
Agency (DIA) during 6 Jan 91 - 6 May 93 and 7 May 93 - 16  Jun  95  in
the Joint Duty History section, and an effective  date/duty  title  of
“16 Jul 01/Staff Judge Advocate” rather than “10 Sep  01/Deputy  Staff
Judge Advocate” in the Assignment History section.

2.    His  Duty  Qualification  History  Brief  (DQHB)  that  met  the
Management  Level  Review  (MLR)  reflect  his  JDA  and  the  correct
effective date/duty title.

3.    He be granted Special Selection Board  (SSB)  consideration  for
the CY01B board, or direct promotion to LTC as  if  selected  by  that
board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

A month before the board convened, he requested, but never received, a
copy of his Officer Selection Record (OSR). A  second  request,  after
the board met, was processed. The omission of his joint service was in
violation of AFI 36-2501. This instruction requires that officers  who
should receive appropriate consideration for performance in JDAs  have
their records precisely identified to  the  selection  board  members,
that joint duty officers receive  consideration  in  establishing  the
“cut line,” and that officers’ performance in  current  or  past  JDAs
receive consideration. The Chairman  of  the  Joint  Chiefs  of  Staff
Instruction (CJCSI) 1330.02A does not prohibit the  listing  of  joint
duty history. Although the joint duty history is not  required  to  be
reported to the JCS  [italics  applicant’s],  joint  duty  history  is
required to be listed. The CJCSI pertains to review of promotion board
results by the Chairman and does not prohibit  the  listing  of  joint
duty history. There is no prohibition on listing JDA in the Joint Duty
History section of the OSB. The Military Personnel Flight  Memorandums
(MPFMs) clearly illustrate the difference between the Joint  Reporting
Category vs. Joint Duty History areas on  the  OSB.  He  attempted  to
correct his records very early and often. He contacted  the  72nd  MSS
Military Personnel Flight (MPF) by phone and email and often  received
snide remarks while trying to make  corrections.  He  used  more  than
reasonable diligence. Not  listing  the  correct  effective  date/duty
title and his JDA played a significant role in properly accessing  his
records during the MLR process. The Robins MPF admitted this  mistake,
which occurred at a critical stage of the promotion process.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active  duty  in  the  grade  of
major with a date of rank (DOR) of 1 May 97.

He was considered but not selected by  the  CY01B  and  CY02B  boards,
which convened on 5 Nov 01 and 12 Nov 02, respectively.

The OSBs for both boards reflect his latest effective date/duty  title
as “16 Jul 01/Staff Judge  Advocate,”  which  is  the  date/title  the
applicant is requesting.  Both OSBs have blank  “Joint  Duty  History”
sections, but the “Assignment History” sections on both OSBs  included
the joint duty tours, including the tour level designation of  “DD/J.”
Also, the applicant wrote  a  letter  to  the  CY02B  board  president
(Exhibit B) advising, among other things, that he had occupied two JDA
billets with the DIA.

The Promotion Recommendation Forms (PRFs) for both boards had  overall
recommendations of “Promote.” The  CY01B  PRF  had  a  duty  title  of
“Deputy Staff Judge Advocate,” and the CY02B PRF had a duty  title  of
“Staff Judge Advocate.”

CJCSI 1330.02B (which superceded CJCSI 1330.02A)  directs  that  joint
promotion consideration does not apply to medical, dental, veterinary,
medical  service,  biomedical  service,  nurse,  chaplain,  or   judge
advocate specialties.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAF/JAX advises that since they do not have the  ability  to  make
duty changes to members’ records in the Military Personnel Data System
(MilPDS), they cannot verify when these changes  were  made.  However,
they can verify  that  as  of  [21 Apr  03]  all  information  on  the
applicant was correct.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPAPD advises that officers who are  assigned  to  joint  duty
assignment listing (JDAL) billets are eligible to receive joint credit
in accordance with Title 10, USC, Chapters 36 and  38.  As  such,  all
officers retain  their  joint  duty  histories  for  serving  in  JDAL
positions. A review of the applicant’s personnel record confirms  both
the Air Force and the Joint Staff’s systems of record were updated  to
reflect appropriate joint duty credit at the time the promotion  board
convened. However, as a Non-Line officer and in accordance with  CJCSI
1330.02B, joint promotion consideration does  not  apply  to  medical,
dental,  veterinary,  medical  service,  biomedical  science,   nurse,
chaplain, and judge advocate  specialties  and  are  exempt  from  the
provisions of  this  instruction.  DPAPD  is  unable  to  correct  the
officer’s OSB to reflect joint credit and joint duty history.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPPO notes that, based on  HQ  AFPC/DPAPD’s  advisory,  joint
promotion  consideration  does  not  apply  to  the   judge   advocate
specialty. As for the alleged incorrect effective date/duty tile,  the
OSB that met the CY01B board did show an effective date/duty title  of
“16 Jul 01/Staff Judge Advocate.” As the error was not present on  the
OSB, SSB consideration  is  not  justified.  As  for  the  applicant’s
contention that the inaccurate effective date and duty tile influenced
the MLR’s review process, presumably he believes it  resulted  in  the
promotion recommendation he received. If so,  relief  must  be  sought
through the evaluation appeal process in accordance with AFI  36-2401.
The applicant did not  provide  any  evidence  showing  the  DQHB  was
incorrect or that the effective date/duty title on the DQHB negatively
impacted the MLR process. Although he provided a  fax  coversheet  and
memo dated 5 Oct 01, 30 days  before  the  CY01B  board  convened,  in
support of his assertion that he requested but never received  a  copy
of his  OSR,  DPPPO  cannot  validate  the  fax  was  received  by  HQ
AFPC/DPPBR1. There is no evidence the AFPC  Records  Section  received
the request. Further, the applicant has  not  shown  evidence  of  any
follow-up action with the Records Section to obtain a copy of his OSR.
Denial is recommended.

A complete copy of the evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts that nowhere in the referenced CJCSI does it say
that joint duty history will not be reflected on an OSB. Further,  the
CJCSI 1330.02B is a review procedure for joint duty positions, not  an
instruction for what is or is not placed on OSBs. Paragraph 3b  states
that officers with these  specialties  may  not  be  assigned  to  JDA
positions and are excluded from the provisions  of  this  instruction.
None of these specialties could receive  joint  credit.  However,  the
regulation does not prevent a denial of joint  duty  credit  that  was
previously earned. That is precisely his point.  What purpose would  a
regulation serve to deny joint credit that was previously earned? That
is not the intent of this regulation. If  so,  it  would  have  stated
joint credit  previously  earned  will  not  be  considered.  This  is
supported by AFI 26-2501. Board instructions AFPC issues go into great
detail about excluding joint duty reporting status (which is  not  his
contention). However, for earned and credited joint duty  history,  it
clearly states the last five JDAs will be displayed on the  OSB.  AFPC
made no comment concerning this  notification  memorandum  and  did  a
cursory review of his appeal.  Also,  not  including  his  joint  duty
history violates Title 10, Chapter 36. AFPC failed to address the duty
title/effective date mistakes.  He provided  proof  that  his  records
were incorrect before the DQHB and that he did,  in  fact,  request  a
copy of his OSR. His faxed request did go to HQ  AFPC/DPPBR.  He  asks
for SSB consideration or direct promotion to the grade of LTC.

The applicant’s complete response,  with  attachments  [also  provided
with Exhibit A], is at Exhibit G.

[Note: The applicant advised in his rebuttal that he did  not  receive
the HQ AFPC/DPAPD advisory. The AFBCMR Staff forwarded a copy of  this
2 Jun 03 evaluation to him on 30 Oct 03.]

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPAPD contends the applicant’s record accurately reflected his
previous joint  tour  history  as  evidenced  by  the  documents  they
provide. However, as a Non-Line officer and IAW  DODI  1300.20,  judge
advocates are included in the definition of a professional  specialty.
As such, they cannot hold a joint duty  assignment  and  are  excluded
from joint promotion categories.  Further,  CJCSI  1300.02B  does  not
apply  to  judge  advocate  officers  since  they  are  defined  as  a
professional specialty and have no  joint  promotion  requirements  or
objectives. Therefore, the applicant’s records are correct.

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

HQ AFPC/JA asserts that previous advisories relating to this case have
correctly pointed out that judge advocates may not be assigned to JDAs
and are  exempt  from  the  requirements  to  track  and  analyze  the
consideration given  to  joint  duty  officers  in  promotion  boards.
However, CJCSI 1330.02B is not intended to diminish the  consideration
of promotion boards of joint duty by officers such as  the  applicant,
whose joint duty is a valid part of  their  assignment  history,  even
though coming prior to the officer’s transfer to a professional corps.
It was an error not to include the applicant’s joint duty service from
1991 through 1995 in the “Joint  History  Duty”  block  of  the  OSBs.
However, AFPC/JA believes  the  error  was  harmless  because  of  the
additional,  specific  information  in  his  OSBs  for   both   boards
describing  his  JDAs.  The  mandates  of  statutory  and   regulatory
requirements to provide promotion boards with appropriate  information
to  consider  an  officer’s  JDAs  were  satisfied  in  both  of   the
applicant’s promotion boards. Clearly both the applicant’s duty  title
and effective date are correctly stated for both boards. The CY01B PRF
duty title (Deputy Staff Judge Advocate) is correct  inasmuch  as  the
rating  official  and  relevant  information  for  PRFs  are  set   by
regulation as of the “PRF Accounting Date,” which is 150  days  before
the promotion board. As for his duty title on his DQHBs for the  MLRs,
the unlabeled and undated roster with no  demonstrated  connection  to
the DQHB he provides must be weighed  against  the  4 Sep  01  Virtual
Military Personnel Flight (VMPF) report showing  a  correctly  updated
duty title and an email describing a 6 Sep 01  VMPF  printout  showing
the same. They agree with DPPPEC that it is appropriate to expect  the
correct duty description reflected by the 4 Sep 01  VMPF  was  carried
forward to the documentation for the late Sep and early Oct  01  MLRs.
The applicant has not provided evidence of probable material error  or
injustice. If the AFBCMR decides otherwise,  they  note  the  SSB  the
applicant has requested would not involve a review of the MLR and  PRF
processes. If an SSB review is granted, the  review  should  logically
first involve a review of the PRF and  MLR  processing  preceding  the
CY01B board. A copy of his OSB should have been made available to him,
even in the absence of follow-up requests by him. However, this  error
is again harmless to the facts of this case. The OSB would  have  been
correct as to his duty title and the issue of joint duty history would
have been substantively covered as discussed above. Therefore,  denial
is recommended.

A complete copy of the evaluation is at Exhibit I.

_____________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATIONS:

The applicant argues HQ AFPC/JA is incorrect  in  asserting  that  not
listing his joint duty history as JDA on his OSB was a harmless error.
It is highly doubtful the judge advocate board members ever served  in
JDAs and would be unaware of the importance of  JDAs  and  performance
unless it was clearly specified on his OSB. None of his OPRs ever  say
“Joint Duty Assignment.” Further, the 1 Mar 94 OPR duty title  is  not
even listed on his OSB. There is little  chance  the  promotion  board
could have deciphered the DIA evaluations found six reports under  his
JAG assignments and determine they were JDAs, especially in  light  of
the absence on the OSB. His DIA OPRs do not say “JDA at the DOD level”
as AFPC/JA infers. His PRF has no reference to any JDA qualifications.
He exercised due diligence to correct the JDA error before  the  board
met only to be erroneously told that his earned joint duty  would  not
be displayed on his  OSB.  He  was  denied  a  promotion  factor  that
certainly could have given him an advantage over other  peers  lacking
such qualifications and experience. It is disingenuous to say  failing
to list his joint duty credit was harmless in this context  of  a  JAG
board of his peers with very few, if any, having joint experience  and
two of the board members were Non-Line, non-JDA eligible officers. The
omitted  JDA  information  would  certainly  have  been   a   positive
discriminator in his promotion evaluation. His incorrect record was at
a distinct disadvantage. He cites similar AFBCMR cases  that  resulted
in relief. Congress’s intent was clear that officers  serving  or  who
have  served  in  JDAs  be  clearly  identified  and  considered   for
promotion. With regard to the contested duty title and reporting date,
the Air Force is wildly speculating on what was presented  before  the
MLR because they acknowledge no records exist. The HQ USAF/JAX  states
the “errors” have been corrected, but cannot state when.  This  weighs
toward the fact that errors were present on his OSB, which he was  not
able to review before it met the promotion board.

[Note:  The  applicant  requested  a  copy  of  “any  such  review  by
AFPC/DPPPEC”  as  referred  to  in  the  AFPC/JA  advisory.   However,
presumably this was  oral  coordination  as  nothing  other  than  the
attached advisories (Exhibits C, D, E, H, and I) were  made  available
to the AFBCMR and, in turn, to the applicant.]

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

_____________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations with regard to the JDA information on his OSBs.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice  to  warrant  partial  relief.  HQ
AFPC/JA believes  the  provisions  of  AFI  36-2501  and  the  service
instructions provided by the applicant calling for JDA information  to
be included in the Joint Duty History block of the OSB are  applicable
to all officers with past or present joint duty history. As such, they
acknowledge it was an  error  not  to  include  the  applicant’s  1991
through 1995 joint duty service on the CY01B and CY02B OSBs.  However,
we disagree with their opinion that this was a “harmless error.”   The
applicant makes more persuasive arguments, such as the  importance  of
this information as a positive discriminator in the context of non-JDA
candidates, his JDA history was not readily apparent  in  his  records
without  being  clearly  specified  on  the  OSBs,  he  exercised  due
diligence in  attempting  to  correct  the  OSBs,  and  his  promotion
opportunities suffered a disadvantage. As for the contested Assignment
History entry, both the CY01B and CY02B OSBs correctly  reflected  the
effective/duty title  requested  by  the  applicant.  The  applicant’s
suggestion for direct promotion as an alternative  remedy  was  noted;
however, we believe the SSB process is the more appropriate method for
evaluating  his  promotion  potential.  Therefore,  we  recommend  the
applicant’s OSBs be corrected to the extent indicated below and he  be
afforded SSB consideration for the CY01B board and, if necessary,  the
CY02B board.

4.    We deliberated over the  applicant’s  assertion  that  his  DQHB
reviewed by the Sep and Oct 01 MLRs did not reflect his  JDA  and  the
16 July 01 duty assignment entry. Based on the evidence  presented  by
the Air Force and the applicant, we cannot  determine  with  certainty
whether the DQHB was incorrect and adversely affected the MLR  process
as the applicant contends. Further, as supporting  records  apparently
are destroyed after the promotion boards are announced, an MLR  cannot
be  reconstituted.  If  the  applicant  believes  the  PRF   promotion
recommendation was negatively impacted, we  would  suggest  he  obtain
supporting statements from his senior  rater  and  MLR  president  and
first seek relief under the  provisions  of  AFI  36-2401,  Correcting
Officer and Enlisted Evaluations. In view of the above,  this  portion
of the applicant’s appeal should be denied.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to add his joint duty  assignments
at the Defense Intelligence Agency (DIA) during 6 January 1991 - 6 May
1993 and 7 May 1993 - 16 June 1995 in the Joint Duty  History  section
of the Officer Selection Briefs (OSBs) for  the  Calendar  Year  2001B
(CY01B) and CY02B Lieutenant Colonel (LTC) Central Selection Boards.

It is further recommended that he be considered for promotion  to  the
grade of lieutenant colonel by a Special Selection Board for the CY01B
Lieutenant Colonel Central Selection Board and, if  not  selected,  by
the CY02B Board.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 February 2004 under the provisions of AFI  36-
2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Ann-Cecile McDermott, Member
                 Ms. Leslie E. Abbott, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2003-00941 was considered:

   Exhibit A.  DD Form 149, dated 10 Mar 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ USAF/JAX, dated 21 Apr 03.
   Exhibit D.  Letter, HQ AFPC/DPAPD, dated 2 Jun 03.
   Exhibit E.  Letter, HQ AFPC/DPPPO, dated 15 Sep 03.
   Exhibit F.  Letters, SAF/MRBR, dated 19 Sep 03.
   Exhibit G.  Letter, Applicant, dated 14 Oct 03, w/atchs.
   Exhibit H.  Letter, HQ AFPC/DPAPD, dated 17 Nov 03, w/atchs.
   Exhibit I.  Letter, HQ AFPC/JA, dated 16 Dec 03.
   Exhibit J.  Letters, AFBCMR, dated 30 Oct 03, & SAF/MRBR,
                  dated 19 Dec 03.
   Exhibit K.  Letter, Applicant, dated 16 Jan 04, w/atchs.


                                   THOMAS S. MARKIEWWICZ
                                   Chair




AFBCMR BC-2003-00941




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 corrected to add his joint duty  assignments
at the Defense Intelligence Agency (DIA) during 6 January 1991 - 6 May
1993 and 7 May 1993 - 16 June 1995 in the Joint Duty  History  section
of the Officer Selection Briefs (OSBs) for  the  Calendar  Year  2001B
(CY01B) and CY02B Lieutenant Colonel (LTC) Central Selection Boards.

      It is further directed that he be considered for promotion to
the grade of lieutenant colonel by a Special Selection Board for the
CY01B Lieutenant Colonel Central Selection Board and, if not selected,
by the CY02B Board.




                       JOE G. LINEBERGER
                       Director
                       Air Force Review Boards Agency