AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02817
            INDEX CODE:  131.00
            COUNSEL:  Mr. Gary R. Myers
            HEARING DESIRED:  Not Indicated

      MANDATORY CASE COMPLETION DATE: 17 Mar 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  A Special Selection Board (SSB) be convened which provided  reasons  for
nonselection for each calendar year considered.

2.  He be directly promoted to the grade of colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 12 Jun 88,  the  AFBCMR  granted  him  relief  by  expunging  an  Officer
Effectiveness Report (OER) from his record and directing  SSB  consideration
for promotion to lieutenant colonel.   He  was  selected  for  promotion  to
lieutenant colonel by SSB with an effective date of rank of 1  May  79.   He
was subsequently continued on active duty from his date of separation  of  1
Aug 84 and ordered to active duty on 1 May 90.  He was  considered  and  not
selected by SSB for promotion to the grade of colonel by the  calendar  year
1983 through 1989 colonel selection boards.

Since no OERs were prepared for the period 1 Aug 84 through 17 Jul 89,  none
of the OERs contained in his selection record reviewed  by  the  SSB  showed
him in the grade of lieutenant colonel.   Based  on  the  decisions  in  the
cases of Homer v. Roche and Miller v. Roche,  the  failure  of  the  SSB  to
provide  him  reason  or  rationale  for  his  nonselection  makes  the  SSB
nonselection flawed.  The gap in OERs  makes  it  impossible  to  be  viewed
fairly by an SSB and direct promotion is the only meaningful solution.   His
mandatory retirement date of 1 Apr 90 made it impossible  for  him  to  have
two years of OERs before selection consideration as is the board's  standard
policy.

In  support  of   his   request,   applicant   provided   counsel's   brief,
documentation pertaining to his previous AFBCMR  application,  documentation
pertaining to  his  SSB  considerations,  and  copies  of  a  United  States
District Court Memorandum.  His complete submission,  with  attachments,  is
at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant served in an enlisted status from 3 Mar 60 through 22 Mar 62.   He
was commissioned as a second lieutenant, Reserve of the Air Force on 23  Mar
63.  He was progressively promoted to the grade  of  major,  having  assumed
that grade effective and with a date of rank of 1 Mar 73.  On 31 Jul 84,  he
was retired from the  Air  Force  due  to  his  nonselection  for  permanent
promotion.

On 2 Jun 88, the AFBCMR approved his request that his OER closing 31 Dec  75
be removed from his records and directed SSB consideration for promotion  to
the grade of lieutenant  colonel.   On  30  Jun  89,  an  SSB  convened  and
selected the applicant for promotion to lieutenant colonel by  the  Calendar
Year  1978  Lieutenant  Colonel  Central  Selection  Board.    Upon   Senate
confirmation he was provided a date of rank and effective date of 1 May  79.
 On 10 Aug 89, the AFBCMR further  directed  his  records  be  corrected  to
reflect that he was not  released  from  active  duty  on  31  Jul  84,  but
continued on active duty in the grade of lieutenant colonel.  On 27 Nov  89,
an SSB convened to consider the applicant for  promotion  to  the  grade  of
colonel for the calendar years 1983 through 1989 selection boards.   He  was
not selected.  Applicant was retired from the Air Force on 31 Mar  90.   His
records reflect 30 years and 28 days of active service

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AIR FORCE EVALUATION:

AFPC/JA recommends 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
nonjusticiable  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 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.

JA concludes that all  of  the  information  that  explains  the  procedures
utilized by SSBs, to include the provisions of AFI 36-2501,  the  Memorandum
of  Instruction,  the  first-day   board   member   briefings,   all   other
instructions pursuant to  the  DoD  Directive,  the  board  report  and  its
certification that the board members  carefully  considered  the  record  of
each person, coupled  with  the  presumption  of  regularity  to  which  the
selection board is entitled, is sufficient to comply with  the  requirements
of the statutes and the case law in the Federal Circuit.  Moreover, the  two
cited cases do  not  invalidate  in  any  way  the  results  of  applicant's
previous SSBs.

Counsel has likewise failed to establish an error  or  injustice  warranting
relief with respect to his  argument  that  direct  promotion  is  warranted
because he was unable to have any OERs in the rank  of  lieutenant  colonel.
Promotion is not an entitlement or reward for past  service;  rather  it  is
advancement to a higher grade that must be  earned  and  is  based  on  past
performance and future potential.  Officer are promoted  only  if  they  are
determined by a promotion board to be among the best qualified in the  group
under consideration.  In this  case,  he  was  awarded  retroactive  service
credit for  the  approximately  11  years  his  record  now  reflects  as  a
lieutenant colonel, never actually served on active duty in that  grade  and
consequently never received performance reports  as  a  lieutenant  colonel.
The remedy suggested by applicant  would  constitute  a  totally  gratuitous
windfall that was never earned and in fact, would have entailed  credit  for
promotion to, and retirement from, a grade in which he never served  a  day.


Applicant seems to  have  forgotten  that  his  records  were  corrected  to
provide him opportunity for promotion to lieutenant colonel at his  request.
 Implicit in that request was the realization that success would  place  the
applicant in  the  position  it  did  insofar  as  eligibility  for  further
promotion.  At that time, he seemed more than willing  to  accept  from  the
correction process the benefits of retroactive correction (status,  date  of
rank, back pay and a full 30  year  retirement)  yet  he  now  suggests  the
correction has caused an injustice  as  a  byproduct.   In  JA's  view,  one
cannot have  it  both  ways.   He  is  demanding  perfection  which  is  not
possible.  The corrections to his records he has received  have  necessarily
created the situation  of  which  he  now  complains.   Indeed,  retroactive
dating to establish new dates of rank to rectify errors or injustices is  an
integral part of the correction process.  If the downside  of  that  process
is the officer's immediate qualification for consideration for promotion  to
the next higher grade, that goes with the territory.  Just  as  importantly,
the process must end.  The JA evaluation is at Exhibit C.

AFPC/DPPPO states  that  based  upon  the  opinion  of  AFPC/JA,  denial  is
recommended.  The DPPPO evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to counsel on  18 Nov  05
for review and comment within 30 days.  As of this  date,  this  office  has
received no response.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.



3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.   We  took  notice  of  counsel's  complete
submission in judging the  merits  of  this  case,  including  his  argument
regarding the federal court cases cited and his contentions with respect  to
the fact that the applicant was unable to have  any  OERs  rendered  in  the
grade of lieutenant colonel.  However, we do not find  counsel's  assertions
sufficiently persuasive to  override  the  rationale  provided  by  AFPC/JA.
Therefore, we adopt its rationale as  basis  for  our  conclusion  that  the
applicant has not been the victim of an error or injustice.  In arriving  at
our decision, we note that due to circumstances over which he had little  or
no control, he was unable to receive fair  consideration  for  promotion  to
the grade of colonel.  However, we note as well that the applicant  did  not
initially appeal the 1975 OPR until 1980.  Had the applicant  exercised  due
diligence in appealing  the  OPR  which  resulted  in  his  nonselection  to
lieutenant colonel he could have received retroactive promotion in a  manner
which would have allowed for  the  preparation  of  OPRs  in  the  grade  of
lieutenant colonel before competing for promotion to colonel.   In  view  of
this,  we  believe  the  applicant's  retroactive  promotion  to  lieutenant
colonel with all pay and allowances and the additional 11 years  of  service
constitutes full  and  fitting  relief,  and  that  further  relief  is  not
warranted.

_________________________________________________________________

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 Number  BC-2005-
02817 in Executive Session on 5 Jan 06, under  the  provisions  of  AFI  36-
2603:

      Mr. John B. Hennessey, Panel Chair
      Mr. Charles E. Bennett, Member
      Mr. Joseph D. Yount, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Apr 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 14 Oct 05.
    Exhibit D.  Letter, AFPC/DPPPO, dated 14 Nov 05.
    Exhibit E.  Letter, SAF/MRBR, dated 18 Nov 05.




                                   JOHN B. HENNESSEY
                                   Panel Chair