RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03425

      XXXXXXX    COUNSEL:  EUGENE R FIDELL

      XXXXXXX    HEARING DESIRED: YES

MANDATORY CASE COMPLETION DATE: MAY 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered by a Special Selection Board (SSB) for  promotion  to
the grade of colonel for the Calendar Year 2000A for the Medical Corps
Central Colonel Selection Board using the Calendar Year 2002 Air Force
Memorandum of Instruction (MOI) verbiage.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was a biomedical science corps  (BSC)  officer  who  met  the  CY00
colonel promotion board in the promotion zone.  He  is  asking  for  a
special selection board on the basis of  an  injustice.   He  recently
uncovered additional information, which he believed to be an injustice
that was done with respect to this promotion board.

He obtained  through  the  Freedom  of  Information  Act  (FOIA),  the
Memoranda of Instructions (MOI) for the 2000, 2001, 2002 and 2003  BSC
colonel promotion boards.  Starting in  2002,  the  instructions  were
modified in a highly significant way.  The issue in  question  is  the
quoted paragraph  “Many  BSC  officers  in  the  biomedical  clinician
specialties, because of their special  medical  training  and  skills,
have been assigned to fill  critical  medical  requirements  providing
direct patient care.  In assessing those BSC officers being considered
for promotion, the board should consider the fact that these officers,
because of  the  needs  of  the  Air  Force,  may  not  have  had  the
opportunity to compete for career-development assignments commensurate
with their grade and experience or may have been assigned to  a  unit-
level position that would not  normally  be  commensurate  with  their
grade and experience not used in the 2000 and 2001 promotion  boards.”


This language is correct and sound policy, and helps to prevent unfair
treatment of certain BSC officers.  Had it been applied to his initial
selection board, it may well have changed the outcome in terms of  his
own selection as he was providing direct patient care at the time that
board  met.   In  addition,  he  has  been  denied  career-development
assignments. Specifically, in 1997, in coordination with his associate
chief and his assignment handlers,  he  applied  for  a  Congressional
Fellowship through the American Association  for  the  Advancement  of
Science (AAAS).  In May 1997, he was notified he had been accepted for
the AAAS program.  He was assigned to work  for  Rep  Ike  Skelton,  a
senior member of the House Armed Services Committee.   The  Air  Force
denied his request, apparently  because  he  was  filling  a  critical
medical requirement providing direct patient care.  That  is,  had  he
left his podiatry position, there was not going to  be  a  replacement
for him.

In consultation with BSC peers, he  has  examined  the  BSC  colonels’
promotion list for the year 2000 and cannot identify a single  officer
who was providing direct patient care at the time the board met.   All
of the “promotes” in this board were performing in  career-development
assignments or  outside  of  their  primary  AFSC.   Because  of  this
injustice, he is requesting an SSB with the newer instructions  to  be
used as the criteria for promotion.

In support of his application, applicant submits a personal statement,
copies of MOIs for CY00A, CY01B, CY02B and CY03A BSC colonel promotion
boards and a letter of acceptance from the Congressional Fellowship.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on  extended  active  duty  in  the
grade of lieutenant colonel.  He was commissioned a Captain  into  the
Biomedical Sciences Corps (BSC) in accordance with AFI 36-2005.  Since
1981, he has been categorized as a member of the BSC.

Applicant was considered and  was  nonselected  in-the-promotion  zone
(IPZ) by the CY00A  Colonel  BSC  Central  Selection  Board,  and  was
nonselected above-the-promotion zone (APZ) by the CY01, CY02, and CY03
central selection boards.

Applicant has received seven OPR's since he was promoted to the  grade
of lieutenant colonel, all of which reflects "Meets Standards."

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPB recommended denial  and  stated  the  applicant  offered  no
definitive proof the CY00A Colonel BSC Selection Board was  unfair  or
prejudicial  toward  him  in  non-selecting  him  for  promotion.  The
applicant claims an injustice was committed  upon  him  by  the  CY00A
promotion board where he was non-selected for  promotion.  He  alleges
the CY00A Colonel BSC Selection Board was not appropriately instructed
with regard to the emphasis they, as board members should place on BSC
officers who might not have had the opportunity to compete for career-
development assignments commensurate with their grade and  experience.
The applicant reaches this conclusion based on  the  presence  of  the
paragraph addressing career-development concerns that was included  in
the SecAF MOI used for boards after  1  January  2002.  The  applicant
contends that had this paragraph been used in his CY00A colonel board,
he may have been selected for promotion, as he  was  providing  direct
patient care at the time the board met.

The applicant insinuates that the  MOI  change  two  years  after  his
promotion failure proves the MOI for the CY00A board  was  flawed  and
therefore he should be granted  an  SSB.  The  applicant’s  allegation
implies a degree of standardization and  finality  to  the  guidelines
provided to promotion boards, which is  not  required  in  law.  As  a
matter of practice, the MOI is reviewed  and  approved  by  the  SecAF
prior to the convening of each promotion board. This allows the  SecAF
to adapt and revise the instructions to meet the needs of the service,
which are ever changing. Changes therefore are an expectation and  not
an  exception.  The  applicant  failed  to  demonstrate  how  he   was
disadvantaged at the time the promotion board convened.

AFPC/DPPB’s complete evaluation is attached at Exhibit C.

AFPC/DPPPO states that per Title 10, Chapter 36, paragraph 621,  under
regulations prescribed by the Secretary of Defense, the  Secretary  of
each military department shall establish  competitive  categories  for
promotion.  Each officer whose name appears on  an  active  duty  list
shall be carried in a competitive category of officers.   Officers  in
the same competitive  category  shall  compete  among  themselves  for
promotion.

AFPC/DPPO recommended denial and stated the applicant has  not  proven
the wording of the  MOI  caused  his  nonselection  to  colonel.  They
concurred with the recommendations by DPPB and DPAMF2.

AFPC/DPPPO’s complete evaluation is attached at Exhibit D.

AFPC/DPAMF2  stated  a  career  developmental  assignment   does   not
guarantee promotion just as direct patient  care  assignments  do  not
necessarily result in non-selection. The whole person concept is  used
by all boards in identifying promotees. Needs of  the  Air  Force  and
manning are used  when  approving  or  disapproving  any  request  for
special duty or fellowship.

The applicant was denied career-development assignments. Specifically,
in 1997, in coordination with his Associate Chief and  his  assignment
handlers, he  applied  for  a  congressional  Fellowship  through  the
American Association for the Advancement of  Science  (AAAS)  but  his
request was denied.

AFPC/DPAMF2’s complete evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the evaluations and stated  that  the
AFPC/DPPPO’s memorandum is utterly conclusory  and  unrealistic.  They
claim the applicant failed to provide  documentation  to  support  his
contention that he was disadvantaged by the terms of  the  CY00A  MOI.
But that is simply  not  the  case.  The  very  language  employed  in
subsequent iterations of that MOI  confirms  that  the  applicant-like
other officers in his specialty who  were  performing  direct  patient
care services-was disadvantaged in the promotion process, and the  MOI
change corroborates this. If there  had  been  no  unfairness  in  the
earlier version, why did the  Secretary  change  it  to  add  specific
recognition of the fact that persons in the applicant’s  position  may
have been shortchanged? DPPPO’s other point-that “there is no evidence
that lack  of  a  career-developmental  assignment  is  a  reason  for
nonselection”-is patently absurd.  By  definition,  career-development
assignments are career-enhancing, and the core of a military officer’s
career  is  promotion.  The  Recommendation   paragraph   of   DPPPO’s
memorandum is also erroneous as a matter  of  law  since  it  directly
implies that the burden of proof is on the applicant to show that  the
MOI caused his nonselection. The applicant has  no  duty  to  show  he
would have been selected if the MOI had included the  provision  later
added. Rather, the burden of proof is on the Air Force to show that he
would not have been selected in any event, i.e., even if the 2000  MOI
had included the direct-patient-care guidance.

AFPC/DPAMF2’s memorandum suffers from similar defects. All it does  is
try to hide behind the “whole person concept” or the “needs of the Air
Force” in an effort to thwart scrutiny of the  particulars  that  were
before the promotion board-in this instance, whether  the  applicant’s
promotional chances were affected by the service’s refusal in 1997  to
afford him a career-enhancing congressional fellowship. We assume that
that effort will not divert the AFBCMR’s attention  from  that  issue.
Moreover, it is in no way incumbent  on  him  to  show  that  such  an
assignment would have guaranteed his promotion  to  colonel.  All  the
applicant needs to do  is  show  that  assignments  like  that  are  a
positive factor when it comes to promotion-as they  obviously  are-and
once that is so, the burden shifts to the service to demonstrate  that
the applicant would not  have  been  promoted  even  if  he  had  been
permitted to the have that fellowship. DPAMF2’s  memorandum  makes  no
effort to carry that burden.

AFPC/DPPB’s memorandum is laden with platitudes that fail to  come  to
grips with the applicant’s simple claim of unfairness. The Air Force’s
own actions evince an  awareness  that  officers  in  the  applicant’s
position-i.e., BSC officers  who  furnish  direct  patient  care  were
placed at a career disadvantage. This is not a mysterious  matter;  it
is one the highest levels of the Air Force have recognized. We are not
trying to break new ground-the point has already been embraced by  the
service. The only question  is  why  an  officer  in  the  applicant’s
position should not have had a fair chance at promotion  when  he  met
the CY00A board, based on the same  kind  of  guidance  the  Secretary
later issued. Several of DPPB’s observations merit  specific  comment.
For example, they argue that SecAF MOIs are not a “directive to  board
members that they must select a consideree if he or she falls  into  a
certain situation or category mentioned in  the  MOI.”  We  could  not
agree more. But that is not the point. The applicant  does  not  claim
the CY00A board had a duty to promote him; all he claims is  that  the
MOI should, in fairness, have included the kind of intelligent,  fair-
minded  direct-patient-care  paragraph  that  later   iterations   did
include. Language in a secretarial MOI  is  not  intended  to  mandate
anyone’s selection; but it is entitled to respect as general  guidance
to the board members. If the “whole person” concept  and  a  focus  on
“job performance”  were-as  DPPB  insists-sufficient  to  ensure  fair
consideration of those BSC officers who finished direct patient  care,
why did the Secretary feel it necessary to add the direct-patient-care
paragraph? Nor is it an answer to suggest, as this advisory does, that
the applicant should have  addressed  a  letter  to  the  CY00A  board
complaining about his career progression or continuing  assignment  to
direct-patient-care duties. The issue presented is one of policy,  and
writing a letter to the president of the board is  no  substitute  for
policy guidance from the highest civilian official of the  Department.
As DPPB acknowledges, the fact that the applicant failed of  selection
after first meeting a colonel’s board is no evidence that he would not
have been selected by the CY00A had the proper guidance been  included
in the MOI. Even if one or more BSC officers were later promoted above
the zone to colonel, it is critical that DPPB’s  memorandum  fails  to
assert that any of those officers were direct-patient-care  providers.
Hence, the point is  fallacious.  Nor  is  it  fair  to  suggest  that
“strength of record” must have been the cause of the applicant’s first
failure of selection, since one of these issues in this case  concerns
the Air Force’s refusal to permit him  to  accept  a  career-enhancing
fellowship that would have  strengthened  his  record.  Finally,  DPPB
insists  that  independent  data  is  needed  concerning  whether  BSC
officers who were providing direct patient care were at a disadvantage
when they met the CY00A board. But the Air Force has a  monopoly  over
those data-and DPPB’s memorandum makes it clear  that  the  Air  Force
would not release the handful of pertinent  files  if  a  Privacy  Act
request were made for them. That being the case, the Air Force  has  a
duty to retrieve those few files and verify to  the  AFBCMR  precisely
how many of the CY00A board colonels selects  were  furnishing  direct
patient care.

Applicant’s counsel’s complete response is at Exhibit G.
_________________________________________________________________


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. After reviewing the  evidence  of
record, we are not persuaded that the applicant’s records are in error
or injustice.  The applicant’s contentions are noted; however, in  our
opinion, the detailed comments provided by the appropriate  Air  Force
offices adequately address those  allegations.  In  this  regard,  the
Board notes that the MOI is reviewed and approved by the Secretary  of
the Air Force prior to the convening of  each  promotion  board.  This
allows the Secretary  of  the  Air  Force  to  adapt  and  revise  the
instructions to  meet  the  needs  of  the  service,  which  are  ever
changing.  Therefore, we agree with opinions  and  recommendations  of
the Air Force  offices  of  primary  responsibility  and  adopt  their
rationale as the basis for the conclusion that the applicant  has  not
been the victim of an error or injustice.  In the absence of  evidence
to the contrary, we find no compelling basis to recommend granting the
relief sought in this application.

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 a 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 Docket  Number  BC-2004-
03425 in Executive Session on 19 July 2005, under  the  provisions  of
AFI 36-2603:

      Mr. John B. Hennessey, Panel Chair
      Ms. Patricia R. Collins, Member
      Mr. Richard K. Hartley, Member




The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 29 Oct 04, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPB, dated 7 Dec 04.
      Exhibit D. Letter, AFPC/DPPPO, dated 3 Jan 05.
      Exhibit E. Letter, AFPC/DPAMF2, dated 4 Jan 05.
      Exhibit F. Letter, SAF/MRBR, dated 7 Jan 05.
      Exhibit G. Letter, Counsel Response, dated 24 Jan 05.






      JOHN B. HENNESSEY
      Panel Chair