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


IN THE MATTER OF:      DOCKET NUMBER:  BC-2001-00969

      XXXXXXX    COUNSEL:  Gary R. Myers

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered for  promotion  to  the  grade  of  lieutenant  colonel  by
Special Selection Board (SSB) for the CY99B (30 Nov 99)  Central  Lieutenant
Colonel  Selection  Board  and  each  subsequent  board  for  which  he  was
eligible.

If  he  is  not  selected  for  promotion  to   lieutenant   colonel   after
consideration by the appropriate SSBs, he be provided with a reason  why  he
was denied promotion.

If he is not granted promotion consideration  to  the  grade  of  lieutenant
colonel by SSB as requested above, he be promoted directly to the  grade  of
lieutenant colonel as if selected by the CY99B  Central  Lieutenant  Colonel
Selection Board.

_________________________________________________________________

RESUME OF CASE:

On 26 Jul 01, the Board granted the applicant’s requests  for  consideration
for promotion to the grade of lieutenant colonel by special selection  board
(SSB) for the CY99B  Central  Lieutenant  Colonel  Selection  Board  with  a
revised promotion  recommendation  form  (PRF)  with  an  overall  promotion
recommendation of “Definitely  Promote”  (Exhibit  G).   The  applicant  was
subsequently considered for promotion by SSB on 7 Jan 02 and not selected.

On 14 Jan 04, the Board denied a request from the applicant he  be  directly
promoted to the grade of lieutenant colonel as if selected by the CY99B  (30
Nov 99) Lieutenant Colonel Central Selection Board (Exhibit Q).

In a letter dated 1 Mar 05, applicant through  counsel  makes  the  requests
indicated above (Exhibit R).  Applicant’s counsel opines that based  on  the
decisions in the cases Homer v. Roche and Miller v. Roche  it  is  arbitrary
and capricious for an SSB to fail to  provide  a  rationale  for  denial  of
promotion or selection to senior service school.  Counsel  states  that  the
applicant was not provided any rationale for denial of  his  promotion  when
considered for promotion by SSB.

_________________________________________________________________

AIR FORCE EVALUATION:

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

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 any further inquiry by a Court or BCMR to
require additional explanation of a particular SSB’s deliberation as they
related to a particular member’s record or any comparison of records—which
information is not made a part of the board report or record—would be
strictly prohibited as a violation of 10 U.S.C. 618(f), which provides that
“except as authorized or required by this section, proceedings of a
selection board convened under 611 of this title (Title 10) may not be
disclosed to any person not a member of the board.”  In their opinion, it
would be virtually impossible to submit to a court or anyone else a
detailed explanation as to why a particular member’s record did not compare
as favorably as other records without violating this provision of law.

The complete evaluation is at Exhibit S.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation counsel  states  that  “contrary
to the advisory opinion,  applicant  has  provided  evidence  that  the  SSB
proceedings were flawed.”  He notes the applicant was awarded a “DP” by  the
AFBCMR.  Counsel states they have previously  taken  the  position  the  SSB
procedure is flawed  as  the  only  “DP”  to  go  before  the  SSB  was  the
applicant’s, thereby clearly identifying the applicant’s record as  the  one
being rescreened.  Counsel  opines  this  allows  for  bias  which  bias  is
demonstrated by the fact that SSBs have a DP promotion  rate  of  50%  while
the general “DP” promotion rate is nearly 100%.  This flaw is  exactly  what
Richey  v.  United  States  was  referring  to.   Richey  applies   to   the
applicant’s case, but the above identified procedural and  substantive  flaw
requires examination.  Richey is not dispositive here.

Counsel’s complete response is at Exhibit U.

_________________________________________________________________

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 it is arbitrary and capricious for an SSB to fail to provide  rationale
for denial of promotion or selection to a senior  service  school,”  we  are
not persuaded by counsel’s argument  that  the  applicant  should  again  be
considered for promotion by SSB because the previous SSBs  that  denied  him
promotion failed to provide rationale.  We do not find  counsel’s  arguments
sufficiently  compelling  to  overcome  the  advisory  opinion  prepared  by
AFPC/JA.  Consequently, 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 provide the applicant  any
further relief.

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 Q.  Addendum to Record of Proceedings,
                dated 12 Feb 04,w/Exhibits.
      Exhibit R.  Letter, Counsel, dated 1 Mar 05.
      Exhibit S.  Memorandum, AFPC/JA, dated 18 Apr 05.
      Exhibit T.  Letter, AFBCMR, dated 10 May 05.
      Exhibit U.  Letter, Counsel, dated 20.Jun 05.



                                   CHARLES E. BENNETT
                                   Panel Chair