RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03220
            INDEX CODE:  131.00, 129.01
            COUNSEL:  None

            HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  22 Apr 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records reflect he was promoted to the grade of lieutenant colonel
(LTC) by the Calendar Year 1985 (CY85) LTC  Central  Selection  Board,
and he served on continuous active duty in the permanent grade of  LTC
through 31 Mar 97,  giving  him  28  years  of  total  active  federal
commissioned service (TAFCS).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Based on a previous AFBCMR corrective action, three erroneous  Officer
Effectiveness Reports (OERs) were removed from his  Officer  Selection
Record (OSR).  These OERs prevented him from originally receiving fair
and equitable consideration  for  promotion  to  major.   He  believes
removing these same OERs was also responsible for his not  having  had
an opportunity to fairly compete with his contemporaries for promotion
to LTC.  The Board should rectify this situation by directly promoting
him to that grade.  He claims since first becoming aware of the errors
in the three OERs in 1991, he rigorously  worked  within  the  appeals
system to have his  record  corrected.   This  long,  arduous  process
resulted in his not being selected for major until Mar 03.  There  was
no avenue for him to equitably compete for LTC through  the  promotion
board selection system because he was never afforded  the  opportunity
to serve as a major and build a record in that grade.

He provides three supporting statements, two of which were written  by
two members of his rating chain when he was a captain.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a Reserve  officer  on  31 Mar  68  and
entered active duty on 31 Dec 68.   He  served  as  an  administrative
management officer/personnel officer in the grade of captain until  he
was separated on 28 Sep 81, following two nonselections for  promotion
to major, after 12 years, 8 months and 28 days of active service.

Upon separation, the applicant chose to continue in the Air  Force  by
enlisting and ultimately he attained  the  grade  of  master  sergeant
(MSgt).

In 1985, the applicant first filed  an  AFBCMR  application  to  have,
among other things, the OERs covering the  period  30 Dec  71  through
28 Nov 75 be amended and the OERs for the periods  ending  31 Oct  76,
31 Oct 77, and 31 Oct 78 removed from his records.   His  request  was
denied on 8 Oct 86.

After 24 years and 3 months of total active service, he retired in the
grade of captain (the highest grade held) on 1 Jul 93.

In 1994, the applicant requested reconsideration of his 1985 appeal to
void the three OERs.  That request was twice denied in 1996.   Another
request for reconsideration with support from the  former  raters  was
filed in Mar 01 and again denied by a majority of the Board  on  6 Jun
01.  However, on 29 Aug 01, the  Director  of  the  Air  Force  Review
Boards Agency concurred with the minority vote and directed the  three
contested OERs be voided and the applicant afforded consideration  for
Regular Air Force appointment and promotion consideration to the grade
of major by special selection boards (SSBs).

As a result of voiding the three OERs, the applicant was considered by
an SSB that convened on 9 Sep 02 for the CY80 and CY81 major selection
boards.  He was selected and promoted to the grade  of  major  by  the
CY81 board with a date of rank (DOR) of 8 Feb 81.

A 15 Jan 03 letter to the applicant from HQ AFPC/DPPPOC  informed  him
that, as a result of his retroactive  promotion  to  major,  he  could
submit  an  addendum  to   his   original   application   to   request
reinstatement to active  duty  or  retirement  in  the  higher  grade.
According to  HQ  AFPC/JA  (Exhibit  D),  there  is  no  evidence  the
applicant ever requested to return to active duty to actually serve as
a major, whereupon he would have received performance reports in  that
grade.

Additional AFBCMR applications  resulted  in  the  applicant’s  record
being corrected, on 25 Feb 04, to show he was tendered a  Regular  Air
Force appointment effective 8 Feb 81, as were other Reserve
officers selected for promotion to major by the CY 81 board, and  that
he served in that grade until his retirement in the grade of major  on
1 Jul 93.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPO recommends denial and indicates both  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.  Air  Force  policy  mirrors  that  position.   When  many  good
officers are competing for a  limited  number  of  promotions,  it  is
extremely competitive.  Without access to all  the  competing  records
and a review of their content, the author  believes  sending  approved
cases  to  SSBs  for  remedy  is  the  fairest  and   best   practice.
Unfortunately,  in  the  applicant’s  case,  not  only  would   direct
promotion  be  inappropriate,   but   SSB   consideration   would   be
inappropriate as well.  To be eligible for consideration by an SSB, an
officer’s record must have had some type of correction made to it.

A complete copy of the evaluation is at Exhibit C.

HQ  AFPC/JA  recommends  denial  and  notes  that,  contrary  to   the
suggestion by the applicant, he was offered an opportunity to  request
reinstatement to active duty as a major and he obviously opted for the
alternative that awarded him service credit for  those  years  without
his having to actually return to active duty.   In  arguing  that  his
retroactive promotion to major has effectively created  an  injustice,
the applicant seems to have momentarily  forgotten  that  his  records
were  corrected  to  provide  his  promotion  to  major  and  ultimate
retirement  in  that  grade  at  his  request  [emphasis  advisory’s].
Certainly implicit in that request was the  realization  that  success
would place the applicant in the position it did insofar as  providing
himself a basis for further promotion was concerned.   At  that  time,
the applicant seemed  more  than  willing  to  accept  the  correction
process benefits of his many corrections; yet he now suggests that the
correction has caused a new injustice as a byproduct.  In the author’s
view, one cannot have it both ways.  A 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.  In this particular case, the applicant,  who  was  awarded
retroactive service credit for the more than 12 years his  record  now
reflects as a major, never actually served  on  active  duty  in  that
grade and consequently never received performance reports as a  major.
The remedy suggested by  the  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
the  member  never  served  a  day.   No  matter  how  favorable   the
applicant’s record may have been as a captain, promotion to LTC is not
based on the opinions of former raters as  to  his  qualifications  or
potential but rather on actual comparison  to  his  contemporaries  to
determine if he is among those best qualified.  That is the  requisite
statutory requirement.  To suggest the applicant should  be  handed  a
promotion without competition and then be credited for  retirement  in
that grade for years never served on  active  duty  in  any  grade  or
capacity exceeds even the  most  liberal  notion  of  the  concept  of
injustice.  Just as importantly, the  process  must  end.   Not  every
potential contingency can be remedied; for indeed, these  cases  could
drag on forever addressing new anomalies  created  by  tampering  with
history.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 20 Jan 06 for review and comment within 30 days.   On  15
Feb  06  (Exhibit  F),  the  applicant  requested  that  his  case  be
temporarily withdrawn, and on 9 Mar 06 (Exhibit G), per  his  request,
his case was temporarily administratively closed.

The applicant provided a rebuttal, dated 24 Mar 06.  He contends that,
contrary to the HQ AFPC/DPPPO advisory, direct promotion  to  LTC  and
crediting him with 28 years of  active  service  is  most  appropriate
because it is the only avenue to resolve  his  career  as  an  officer
being terminated at the 12-year point as well as the promotion  issue.
He presents arguments against the HQ AFPC/JA advisory.  Because he had
already attained the maximum number of years on active duty allowed  a
major at the time the SSB  promoted  him,  by  law  he  would  not  be
permitted to continue on active duty.  He therefore had no opportunity
in 2003 to begin building a competitive record as a major  retroactive
to 1981-1985 and to compete eventually with his  contemporaries  at  a
promotion board for LTC in 1985 or later.  As far  as  his  reentering
active duty, in 2003, he was 58 years old and 21 years had  transpired
since he was involuntarily released from active duty  as  an  officer.
He was not afforded the opportunities to “fill in all the squares”  to
have a competitive record as a  major.   He  discusses  the  conflicts
presented by statute and his age.  He  asks  the  Board  to  note  the
supporting statements recommending he be promoted to  LTC,  especially
since AFPC appears not to have disagreed with them.  If  he  had  been
originally promoted to major in 1980-81 as he  should  have  been,  he
certainly would have aggressively embarked as a field grade officer on
challenging assignments and opportunities to build  a  strong  record.
In  1980-85,  promotion  opportunity   to   LTC   was   70-75%.    The
circumstances surrounding  his  case  are  extraordinary  and  require
extraordinary  action  to  remedy  the  injustices  that  caused   his
situation.

A complete copy of the applicant’s response, with attachments,  is  at
Exhibit H.

_________________________________________________________________

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 a thorough review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded a direct promotion to the grade of LTC, as  if  selected  by
the CY85 LTC selection board, is appropriate. After  multiple  appeals
and requests for reconsideration,  and  at  the  applicant’s  request,
three  OERs  were  voided.   As  a  result,  he   was   afforded   SSB
consideration for the  CY80  and  CY81  major  selection  boards,  was
selected for promotion by the CY81 board, and was tendered  a  Regular
Air Force appointment.  He was credited with 12 years  of  retroactive
service as a major with retirement on 1 Jul 93 in that  grade,  rather
than as a captain, after  24  years  and  3  months  of  total  active
service.  The  applicant  now  appears  to  suggest  these  corrective
actions have caused a new injustice and that he cannot be  made  whole
unless directly promoted to the grade of LTC.  He and  the  supporting
statement authors assert that he indubitably would have been  selected
for promotion to LTC had his records not required  correction  in  the
first place. They  apparently  assume  his  career  assignments,  duty
performance, and potential would have been such that promotion to  LTC
was virtually guaranteed.   We,  however,  find  these  pronouncements
speculative.  In this regard, officers compete for promotion under the
whole person concept whereby a  multitude  of  factors  are  carefully
assessed by the selection board members prior to scoring  the  record.
Officers may be qualified but--in  the  judgment  of  selection  board
members vested with discretionary authority to score  their  records--
may not be the best qualified  of  those  available  for  the  limited
number of  promotion  vacancies.   Consequently,  a  direct  promotion
should be granted only under extraordinary circumstances.  We are  not
convinced such is the case  in  the  instant  appeal.   The  applicant
asserts in part he could not have served  on  active  duty  beyond  24
years in the grade of major.  This is not entirely accurate.  Had  the
applicant requested reinstatement to active duty in the grade of major
in order to continue his career, the Board could have, as  it  has  in
certain similar cases, directed that,  if  twice  nonselected  to  LTC
(which would have resulted in separation), these nonselections be  set
aside until he had an opportunity to build a record of performance  in
the  grade  of  LTC.   The  applicant  apparently  did   not   request
reinstatement to active duty.  We note the applicant  himself  delayed
initiating the correction process in that he did not request the  OERs
covering the period 30 Dec 71 through 25 Nov 75  be  amended  and  the
1976, 1978, and 1979 OERs  be  voided  until  1985,  years  after  the
reports’ issuance.  Further, he did not request reconsideration of the
Board’s original 1986 denial until 1994, after he  had  retired.   The
applicant’s submission has not persuaded us  that  his  own  delay  in
seeking relief somehow makes the Air Force culpable for his not having
developed a career as an active duty major, or that his  career  as  a
major would have undisputedly resulted in his selection for  promotion
to LTC as he and his supporters seem  to  believe.   We  conclude  the
applicant  has  been  afforded  appropriate  relief  and  that  direct
promotion to the grade of LTC on the grounds of “what might have been”
is unjustified.  In view of the above and absent  persuasive  evidence
to the contrary, we find no compelling basis  on  which  to  recommend
granting the relief sought.

_________________________________________________________________

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  this  application  in
Executive Session on 25 April 2006, under the provisions  of  AFI  36-
2603:

                  Mr. Michael K. Gallogly, Panel Chair
                  Ms. Mary C. Puckett, Member
                  Mr. Grover L. Dunn, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2005-03220 was considered:

   Exhibit A.  DD Form 149, dated 5 Oct 05, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPO, dated 27 Dec 05.
   Exhibit D.  Letter, HQ AFPC/JA, dated 12 Jan 06.
   Exhibit E.  Letter, SAF/MRBR, dated 20 Jan 06.
   Exhibit F.  Letter, Applicant, dated 15 Feb 06.
   Exhibit G.  Letter, AFBCMR, dated 9 Mar 06.
   Exhibit H.  Letter, Applicant, dated 24 Mar 06, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair