RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02470
                            (CASE 4)
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be directly promoted to the grade of major as  though  selected  by
the Calendar Year 2003B (CY03B) Major Central Selection Board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not given fair consideration for promotion by the  CY03B  board
because his record was prejudiced by an Article 15  that  remained  in
his record even though it should have been removed as directed by  the
AFBCMR.

Although he was given  Special  Selection  Board  (SSB)  consideration
without the Article 15 in his record, he does not believe he was given
fair consideration for promotion because his record had been tainted.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, supportive statements, copies of  two  Officer  Performance
Reports (OPRs), a Meritorious Service Medal (MSM) citation, and  other
documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
the applicant is currently serving on active  duty  in  the  grade  of
captain, having been promoted to that grade on 11 Aug 99.   His  Total
Active Federal Military Service Date (TAFMSD) is 16 Sep 85.

On 14 Mar 02, the Board considered applicant’s request that an Article
15 imposed on 23 Sep 98 be set aside and removed from his records, and
his OPR closing 15 Mar 99  be  amended.   The  Board  recommended  the
Article 15 and OPR be removed from his records, which was accepted  by
the Director, Air Force Review Boards Agency (Exhibit C).

Applicant was considered for promotion to the grade of  major  by  the
CY03B Major Board, which convened on 8 Dec 03,  with  the  Article  15
imposed on 23 Sep 98 and OPR closing 15 Mar 99 still in  his  records,
notwithstanding the Board’s directive that they should be removed from
his records.  He was nonselected.

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

      PERIOD ENDING    EVALUATION

      28 Aug 96  Meets Standards
      15 Mar 97  Meets Standards
      15 Mar 98  Meets Standards
      15 Mar 99                 Removed by Order of Chief of Staff
      15 Mar 00  Meets Standards
       1 Feb 01  Meets Standards
       1 Feb 02  Meets Standards
  #    1 Feb 03  Meets Standards
       1 Feb 04  Meets Standards

# Top Report at the time the applicant was considered and  nonselected
for promotion to the grade of major by the CY03B Major Board.

On 24 May 04, the applicant was considered for promotion to the  grade
of  major  by  an  SSB  for  the  CY03B  Major   Board   without   the
aforementioned Article 15 and OPR in his records.  He was nonselected.

On 4 Aug 04 and 18  Aug  04,  the  Board  considered  the  applicant’s
request that his nonselection for promotion to the grade of  major  by
the CY03B Major Board be set aside, and he be directly promoted to the
grade of major.  The majority of the Board recommended the applicant’s
request be denied, which was  accepted  by  the  Director,  Air  Force
Review Boards Agency, on 17 Sep 04 (Exhibit D).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO recommended denial indicating that based  on  the  evidence
provided, they do not support  the  applicant’s  claim.   Although  an
officer may be qualified for promotion, in the judgment of a selection
board, he may not be the best qualified of  those  available  for  the
limited number of promotion vacancies.  In  their  view,  to  grant  a
direct promotion to  the  applicant  would  be  unfair  to  all  other
officers who have extremely competitive records and also did  not  get
promoted.

According to AFPC/DPPPO, Congress and the Department of Defense  (DoD)
have  made  clear  their  intent  that  errors  ultimately   affecting
promotion should  be  resolved  through  the  use  of  SSBs.   In  the
applicant’s case, he was granted an SSB, with the record  that  should
have met the original board, and was  again  nonselected.   AFPC/DPPPO
believes the applicant has been fairly considered for promotion.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  detailed
response indicating, in summary, he is not challenging the SSB process
but the records that met the  SSB.   The  evidence  he  has  presented
proves his records have been prejudiced, and that the only  option  is
his direct promotion.  It is the duty  of  the  Board  to  remove  the
possibility of an  injustice,  and  he  believes  he  has  proven  the
existence of that possibility.

Applicant’s complete response, with attachment, is at Exhibit G.

By letters, dated 7 Jan 05  and  4  Feb  05,  the  applicant  provided
additional documentary evidence for the Board’s  consideration,  which
is attached at Exhibits H and I.

_________________________________________________________________

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.   The  applicant’s  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find his assertions and  the  documentation
provided in support of his appeal  sufficient  to  warrant  corrective
action.  We took note of the previous Board decision that  an  Article
15 received by the applicant seemed unduly harsh for the  offenses  he
allegedly committed, and  that  the  Article  15,  and  an  OPR  which
appeared to be based on the Article 15, should  be  removed  from  his
records.  Despite the correction of his  records,  we  also  note  the
applicant was considered for promotion to  the  grade  of  major  with
those documents in his OSR and was nonselected for promotion.  He  was
subsequently granted an SSB without the documents in  his  record  and
again was nonselected for promotion.  The  applicant  requests  he  be
directly promoted because his records have been tainted by the Article
15.  However, we are cognizant that the use  of  selection  boards  to
select officers for promotion is a highly sensitive and  discretionary
function and their actions  cannot  be  presumed.   In  the  selection
process, officers compete for promotion under the whole person concept
whereby many factors are assessed by selection boards.  An officer may
be qualified but, in the judgment  of  a  duly  constituted  selection
board, vested with discretionary authority to score his or her record,
may not receive a high enough score to warrant selection for promotion
simply because of the  limited  number  of  promotion  vacancies.   We
believe that in order to justify a Secretarial promotion,  there  must
be evidence the officer has suffered an error  or  an  injustice,  and
there is persuasive evidence the officer's  record  cannot  be  fairly
considered by a duly constituted selection board.  After  our  careful
analysis of this case, we are not persuaded the applicant's case is so
exceptional the SSB which considered his record absent the Article  15
and OPR could not reach a  fair  decision  regarding  the  applicant’s
promotion potential, and the  extraordinary  solution  of  a  directed
promotion is warranted.  In this respect, a review  of  the  available
evidence reveals that although a previous Board made the decision  the
Article 15 should be removed  from  his  records,  they  were  of  the
opinion his  actions  which  prompted  his  commander  to  impose  the
punishment were the result of poor judgment, if not  criminal  intent.
Based on the foregoing, we are not inclined to usurp the discretionary
authority of a duly constituted selection board.  In  our  estimation,
placing the corrected record before an SSB was the appropriate  course
of action, and that the applicant has been afforded proper and fitting
relief.  Therefore, in the absence of  clear-cut  evidence  indicating
the applicant  was  not  afforded  full  and  fair  consideration  for
promotion to the grade of major by a duly constituted SSB, or  he  was
treated differently than  other  similarly  situated  individuals,  we
conclude that no basis exists to  act  favorably  on  the  applicant’s
request for direct promotion to the grade of major.

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   issues   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 AFBCMR  Docket  BC-2004-
02470 in Executive Session on 25 Jan  05  and  1  Mar  05,  under  the
provisions of AFI 36-2603:

      Ms. Peggy E. Gordon, Panel Chair
      Ms. Renee M. Collier, Member
      Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum for the Chief of Staff,
                dated 10 Apr 02, w/atch.
    Exhibit D.  Memorandum for Executive Director, AFBCMR,
                dated 17 Sep 04, w/atch.
    Exhibit E.  Letter, AFPC/DPPPO, dated 24 Nov 04.
    Exhibit F.  Letter, SAF/MRBR, dated 24 Nov 04.
    Exhibit G.  Letter, applicant, dated 6 Dec 04, w/atch.
    Exhibit H.  Letter, applicant, dated 7 Jan 05, w/atchs.
    Exhibit I.  Letter, applicant, dated 4 Feb 05, w/atch.




                                   PEGGY E. GORDON
                                   Panel Chair