RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00440
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be afforded a new Supplemental Selection  Board  (SSB)  under  the
provisions of 10 U.S.C. Section 628, and Air Force  Instruction  (AFI)
36-2501  Officer  Promotions  and  Selective  Continuation,  for   the
Calendar Year 2002B (CY02B) Lieutenant Colonel (LtCol) Judge  Advocate
(JAG) Central Selection Board, or in the alternative, as she has  been
promoted to LtCol, that her promotion effective date and date of  rank
(DOR) to Lieutenant Colonel be changed from 1 July 2005 to 1  December
2004.
_________________________________________________________________

APPLICANT CONTENDS THAT:

On 11 February 2003, she was notified  by  her  commander,  Air  Force
Legal Services Agency (AFLSA/CC), of her non-selection to the grade of
lieutenant colonel by  the  Calendar  Year  2002B  (CY02B)  Lieutenant
Colonel Selection Board.  She  noticed  her  Officer  Selection  Brief
(OSB) for the CY02B Board was  incomplete  as  her  duty  history  was
missing  a  tour  in  Germany  that  included  two  assignments.   She
submitted an application to the Air  Force  Board  for  Correction  of
Military Records asking that these corrections be made to her OSB  and
she  be  granted  SSB  consideration.    Her   request   was   granted
administratively and, on 24 May 2004, she met the P0502B SSB.  She was
not selected for promotion by the SSB and she subsequently submitted a
Freedom of Information Act (FOIA) request for the  names  of  the  SSB
members.  Her request was granted, and upon receipt of  the  names  of
the SSB members she noticed one  Board  member  was  the  Staff  Judge
Advocate (SJA) officer who had prepared a legal review of a  Commander
Directed Investigation (CDI) that  had  stemmed  from  an  earlier  IG
complaint by the applicant.

She contends the 24 May 2004 SSB that considered and non-selected  her
for promotion to lieutenant colonel was a tainted process, as  one  of
the Board  members  couldn’t  have  performed  his  duty  impartially,
without prejudice and with any objectivity.  She states AFI  36-2501’s
requirements in the selection and  promotion  process  were  not  met.
Specifically, that the fundamental purpose of  the  officer  promotion
program is to select officers through a fair and competitive  process;
that board members will request relief from the Secretary of  the  Air
Force (SecAF) if they cannot, in good conscience, perform their duties
without prejudice or partiality; and that in  order  to  preserve  the
board members’ objectivity, the consideree,  benchmark  selectee,  and
benchmark nonselectee records are not identified to the  board  before
scoring.

In support of her  appeal,  the  applicant  has  provided  a  personal
statement, copies of two IG complaints, copies of the  CDI,  the  FOIA
request, portions of AFI 36-2501, select Officer  Performance  Reports
(OPRs), an earlier DD Form 149, Application for Correction of Military
Record, copies  of  Permanent  Change  of  Station  (PCS)  orders  and
amendments, her preselection and Officer Selection  Brief  (OSB),  and
copies of several awards and decorations.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of lieutenant colonel.  In November 2002, the applicant filed  a
complaint with the 11th Wing/IG regarding her  former  rater  alleging
abuse of authority.  On 28 January  2003,  she  submitted  another  IG
complaint alleging several violations  of  AFI  36-2406,  Officer  and
Enlisted Evaluations Systems, against the  same  individual.   The  IG
complaints eventually led to a commander directed investigation (CDI).

On 11 February 2003, the  CY02B  Lieutenant  Colonel  Selection  Board
notified her of her non-selection to the grade of lieutenant  colonel.
She submitted a DD Form 149 dated 7 May 2003 asking that the  Overseas
Duty History and Assignment History section of her  Officer  Selection
Brief (OSB) be changed to add a tour in Germany with an assignment  as
Chief, Circuit Trial Counsel.  She noted on her application  that  her
OSB for selection board P0502B, CY02B,  Lieutenant  Colonel  Selection
Board, did not contain the requested changes and she asked for an  SSB
for promotion to lieutenant colonel by the  CY02B  Lieutenant  Colonel
Selection Board.  On 28 August 2003, her request was  administratively
granted by AFPC/DPPPOC and she was notified her record  would  meet  a
CY02B SSB.

On 22 September 2003, she received a copy of the CDI wherein only  one
of the four allegations was found substantiated.

On 24 May 2004, she met the  SSB  for  the  CY02B  Lieutenant  Colonel
Selection Board  and  was  again  not  selected  for  promotion.   She
requested the names of the SSB members via a  Freedom  of  Information
Act application.  On 8 October 2004, she received the  list  of  board
members and found the name of the SJA  officer  who  had  performed  a
legal review of the CDI that took place in 2003 as  a  result  of  the
aforementioned IG complaints.
_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPB  recommends   denial.    DPPB   contends   the   applicant’s
allegations of a “tainted” selection process  are  unfounded  and  are
based on a faulty perception of how a selection board is organized and
accomplishes the mandate of a fair and impartial board process.   DPPB
does not agree with her assertion that the board did not  comply  with
the requirements of AFI 36-2501 as many safeguards are built into  the
board system, ensuring the board process is fair and  equitable.   The
applicant makes her assertion based on the presence on the board of  a
single individual, the SJA who  evaluated  her  CDI.   She  offers  no
evidence demonstrating he was prejudicial  in  his  role  as  a  board
member.  To the contrary, DPPB’s records indicate he was qualified  to
serve on the SSB and was  administered  an  oath  prescribed  by  law.
Additionally, no board  member,  recorder  or  administrative  support
personnel raised any issues concerning his conduct during the board as
they are required to do if they believed he was failing in his  duties
as a board member.  Absent any evidence that he did  not  comply  with
the  board  oath,  DPPD  submits  he  carried  out  his  board  member
responsibilities without prejudice or partiality.

DPPB’s complete evaluation, with attachment, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the  advisory’s  stance  that  the  board
process has many safeguards built into the system  and  contends  that
the first day orientation and the board member’s oath are  both  given
during the first day, prior to the Board members knowing whose records
they would be scoring.  She  contends  once  the  SJA  recognized  her
record and remembered the CDI associated with it, that it would  be  a
virtual impossibility for him to be impartial, without  prejudice,  or
objective.

She argues against the safeguard known as a  “split”  where  a  single
board member is prevented from  artificially  driving  the  result  by
requiring accountability for one’s score.  If a single board  member’s
score is significantly different from the other board members’ scores,
a “split” is said to have occurred  and  it  must  be  resolved.   She
indicates, because she does not have access to the board  transcripts,
she has no way of knowing whether or not  a  “split”  occurred  during
consideration and therefore cannot confirm  the  SJA’s  partiality  or
prejudice.  She does indicate that if a “split” did occur,  the  SecAF
Memorandum of Instruction to the board allows board members, in  their
“…deliberations, …(to) discuss  (their)  own  personal  knowledge  and
evaluation  of  the  professional  qualifications  of   the   eligible
officers…”  Consequently, he could discuss his personal opinion of  my
qualifications and couch them in terms so as not to be in violation of
his oath.  She indicates she has no knowledge of his opinion of her or
her qualifications, but when the CDI was returned  to  the  SJA  three
times by her commander for further review because the evidence  seemed
to support more  than  just  one  substantiated  allegation,  the  SJA
refused to substantiate more of  the  allegations.   The  CY02B  board
passed over only five JAG’s.  She contends being only one of five made
it is extremely logical he would have known she was the consideree.

In summary, she disagrees with the  advisories  strong  recommendation
that the board deny her request because she did not  offer  definitive
proof that the CY02B SSB was unfair or prejudicial  to  her.   To  the
contrary, she has  given  evidence  of  his  failure  to  substantiate
evidentially supported allegations in her previous  CDI.   That  alone
shows a negative bias towards her.  Having reviewed the  CDI,  knowing
she had been passed over, once  he  saw  her  record  he  should  have
recused himself, if  for  no  other  reason  than  the  appearance  of
partiality, prejudice, and non-objectivity.  The bottom line  here  is
that there are a multitude of Line and JAG officer’s  who  don’t  know
her and are not aware she made criminal allegations against the  rater
who signed her top three OPRs  that  could  have  sat  on  that  board
impartially, without prejudice, but with objectivity.  As this is  the
standard requirement for any board member, she asks the board to grant
her another SSB where no promotion board member would  have  knowledge
of matters outside her record.

Applicant’s complete evaluation is at Exhibit D.

_________________________________________________________________

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.   We  took  notice  of   the
applicant's complete submission in judging the merits of the  case  to
include her contention that one of the CY02B SSB Board  members  could
not have performed his duty impartially, without prejudice,  and  with
any objectivity.  In this respect, the majority  of  the  Board  notes
that, other than  her  own  contentions,  she  has  not  provided  any
corroborative evidence to support her allegation.  On the first day of
the board every board member takes an oath swearing that  he/she  will
perform his/her duties without prejudice or partiality and each member
signs a board report that certifies, to the SECAF, that the board  was
not aware of  any  attempt  to  coerce  or  improperly  influence  the
formulation of the board’s recommendations.  Consequently, based  upon
the presumption of regularity in the conduct of  governmental  affairs
and without evidence to  the  contrary,  the  majority  of  the  Board
believes the applicant has not met  her  burden  of  establishing  the
process of the SSB was not fair and equitable and  not  in  compliance
with appropriate directives.   Furthermore,  the  majority  notes  the
senior rater on the ‘Promote’ PRF and the OPR that met the  CY02B  SSB
was a colonel, while the senior rater on the ‘Promote’ PRF and the OPR
that met the CY04C Board,  was  a  four-star  general.   That  general
officer also stated “If I had a DP, she’d get it.”  and  “I  want  her
promoted.”  Subsequently, the applicant was selected for promotion  to
lieutenant colonel by the next  regularly  scheduled  selection  board
(CY04C).   Therefore,  the  majority  of  the   Board   believes   the
preponderance  of  the  evidence  supports  a  conclusion   that   her
subsequent selection for promotion to  LtCol  was  attributed  to  the
significant improvements to her  selection  folder  between  selection
cycles.   Therefore  the  majority  of  the  board  agrees  with   the
recommendation of the OPR  that  the  applicant’s  request  should  be
denied.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2005-00440  in  Executive  Session  on  18  January  2006,  under  the
provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Mr. Wallace F. Beard, Jr., Member
      Ms. Josephine L. Davis, Member

_________________________________________________________________

By a majority vote, the Board voted to deny the request.  Mr.  Wallace
F. Beard, Jr. voted to grant the applicant an earlier date of rank  to
LtCol, but does not desire to submit a minority report.  The following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 24 Jan 05, w/atchs.
     Exhibit B.  Letter, AFPC/DPPB, dated 1 Mar 05, w/atchs.
     Exhibit C.  Letter, SAF/MIBR, dated 18 Mar 05.
     Exhibit D.  Letter, Applicant, dated 13 Apr 05.



                                   KATHLEEN F. GRAHAM
                                   Panel Chair
                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC

[pic]
Office Of The Assistant Secretary



BC-2005-00440




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application.

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found the applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.





     JOE G. LINEBERGER

     Director
                               Air Force Review Boards Agency