RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03542
            INDEX CODE: 131.01
            COUNSEL:  None

            HEARING DESIRED:  Yes

MANDATORY CASE COMPLETION DATE:  21 May 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be afforded direct promotion to the grade of  colonel  retroactive
to original date of rank (DOR), with pay by the  Calendar  Year  1997B
(CY97B) Colonel Central Selection Board (CSB), or consideration  by  a
Special Selection Board  (SSB),  with  proper  board  composition  and
instructions replicating the original CY97B board with  her  corrected
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While she was granted records corrections to two  Officer  Performance
Reports (OPRs) and a Promotion Recommendation Form (PRF),  which  then
generated a “Definitely Promote (DP),”  the  SSBs  that  reviewed  her
corrected records used improper  instructions,  did  not  compare  her
corrected records with the original [uncorrected]  benchmark  records,
and the board composition was not in accordance with (IAW)  Air  Force
Instructions (AFIs).  A paragraph on how to  treat  corrected  records
that have earned a “DP” recommendation appeared in the  Memorandum  of
Instruction (MOI) for all three of her SSBs but did not appear in  the
MOI for her original board or the SSBs prior to or after her SSBs.  In
an SSB, an officer’s  corrected  record  is  to  be  compared  with  a
sampling of records of individuals who were and were not selected  for
promotion by the original boards [emphasis applicant’s].   She  should
have competed against  the  original  records  of  the  officers  also
afforded SSB consideration, not their corrected records.  She believes
her corrected records as met the SSBs did compare favorably  with  the
above-the-line benchmark records  from  the  original  central  board,
particularly with a “DP” PRF.  A 14 Jul 98 HQ AFPC/JA advisory to  the
AFBCMR on another applicant erroneously  advised  on  earning  a  “DP”
through the correction process, contrary to law and regulation  [i.e.,
the Air Force allegedly permits/encourages an SSB to  treat  a  record
with a “DP” garnered from the corrections process differently  from  a
“DP”  granted  by  command  in  the  normal  promotion  recommendation
process].  During her three records correction  processes,  she  filed
two  Freedom  of  Information  Act  (FOIA)  requests  for  information
necessary to this BCMR action, the second of which  was  not  answered
until 27 Sep 05.  Even now the government  responses  were  less  than
requested, in part due to the lengthy delay during which some  of  the
relevant records were lost or destroyed.

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

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, the applicant was a lieutenant  colonel
(LTC), with a date of rank (DOR) of 1 Nov 93), assigned  to  the  74th
Medical Group at Wright-Patterson AFB (WPAFB), OH, as the Senior Legal
Counsel.  She had been assigned to WPAFB since  1994,  and  previously
from 1985-1989.

The applicant was considered,  but  not  selected,  to  the  grade  of
colonel by the following CSBs:  CY97B (8 Dec 97),  CY98C  (1 Dec  98),
and CY99A (2 Aug 99).

Following  these  CSBs,  the  applicant  submitted   three   different
Evaluation Reports Appeal Board (ERAB) requests.   The  first  appeal,
approved on 25 Oct 99, corrected  her  OPR  closing  18 Aug  96.   The
second, approved 14 Jun 00, corrected her OPR closing 18 Aug 97.

She was considered, but not selected for promotion  to  the  grade  of
colonel by the CY01A CSB (8 Jan 01).

The applicant’s third ERAB appeal requesting her original PRF for  the
CY97B CSB be replaced with one that had been awarded a “DP”  on  6 Oct
00, was approved on 22 Jan 01.

She was considered but not selected by the May 01 SSB  for  the  CY97B
and CY99A CSBs.

On 11 Oct 01, the applicant filed her first FOIA request  for  records
pertaining to the CY97B SSB.

She was considered but not selected by the Dec 01 SSB  for  the  CY98C
CSB.  She was also not selected by the CY01B CSB,  which  convened  on
3 Dec 01.

The applicant appealed a partial FOIA release on 21 Dec 01, requesting
additional records from the CY97B original board, and  from  the  SSBs
for the CY97B and CY99A.  She received a partial  response  on  29 Jan
02, which she appealed on 20 Mar  02.   After  receipt  of  additional
information on 16 Jul 02, she withdrew the remainder of her appeal  on
9 Sep 02; apparently some information was lost, missing,  or  did  not
exist.

The applicant was considered, but not selected, for promotion  to  the
grade of colonel by the CY02B CSB (3 Dec 02).

On 1 Aug 03, she was retired for length of service in the grade of LTC
after 21 years, 8 months and 1 day of active service.

On 27 Sep 05, the applicant received  additional  information  in  the
final government FOIA response.

OPR profile since 1996 follows:

           PERIOD ENDING          EVALUATION OF POTENTIAL

                 18 Aug 96             Meets Standards
                 18 Aug 97             Meets Standards (Top-CY97B)
                 13 Feb 98             Meets Standards (Top-CY98C)
                 13 Feb 99             Meets Standards (Top-CY99A)
                 31 Dec 99             Meets Standards (Top-CY01A)
                 31 Dec 00             Meets Standards (Top-CY01B)
                  3 Sep 01             Meets Standards
                 16 May 02             Meets Standards (Top-CY02B)

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/PB recommends the application be denied.  They contend the MOI
paragraph in question is not specific to SSBs, but applies to and  was
utilized on CSBs as well.  Further, it did not specifically  highlight
“corrected records.”  It instead asks board members  to  consider  the
group size the officer competed in for a PRF.  It further ends with  a
non-prejudicial statement to “evaluate the entire spectrum of  quality
among the total population of eligible officers. . . select from  that
population based on all the information before you.”  In any case, the
MOI used for the applicant’s Dec 01 SSB was different.  This MOI  does
not contain a paragraph concerning PRFs but begins with “The following
paragraph applies to boards held after  1 Aug  1999.”   Thus  the  SSB
would have disregarded the paragraph since  they  were  reconstructing
her Dec 97 CSB.  Additionally, the assertion that an MOI should  never
change is invalid.  The  applicant’s  claim  that  the  SSBs  did  not
compare her corrected record with the original benchmark records  from
the Dec 97 CSB is unfounded and proven as such in their  Apr  02  FOIA
response.  Further, the applicant would not have been aware  of  which
PRFs  belonged  to  benchmark  individuals  and  which   belonged   to
considerees.  This led to her confusion in misunderstanding their  Apr
02 FOIA response because she did not  compare  the  correct  10  PRFs.
HQ AFPC/PB further discusses the applicant’s  claims  that  the  board
composition was not  proper  IAW  AFIs.   As  for  the  cited  AFPC/JA
advisory, central boards and  SSBs  do  not  have  access  to  or  are
furnished AFBCMR advisories.  The only way such an advisory  would  be
introduced to a promotion board would  be  by  the  consideree  as  an
attachment to a Letter to the Board.  HQ AFPC/PB  strongly  recommends
denial for a direct promotion as well as a fourth SSB consideration.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPPO indicates their evaluation of this request requires them
to rely on the opinions of other  Air  Force  experts.   Based  on  HQ
AFPC/PB’s advisory that all  parts  of  the  applicant’s  request  are
unfounded, they also recommend denial.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/JA concurs with HQ AFPC/PB’s analysis  and  recommendation  to
deny the application.  HQ AFPC/JA addresses the applicant’s contention
that her award of  a  “DP”  promotion  recommendation  was  not  given
appropriate weight in the SSB’s  deliberations  because  of  a  faulty
instruction to the board and  an  erroneous  advisory  to  the  AFBCMR
written by this office.  The advisory did not and does  not  represent
official Air Force policy; the advisory was prepared  for  the  AFBCMR
and was never furnished to any promotion board; and the applicant  has
grossly misinterpreted that advisory which,  in  any  case,  has  been
clarified in a number of subsequent cases.  SSBs are not instructed to
value any less a “DP” awarded in the corrections process.  There is no
evidence that the cited JA opinion in some unstated manner  caused  or
causes SSBs to discriminate against  records  with  “DPs”  granted  by
Board request.  HQ AFPC/JA discusses the AFBCMR/ERAB  and  command  DP
processes.  Promotion board MOIs change periodically as each Secretary
puts his/her “stamp” on the  process.   It  has  been  the  Air  Force
practice for at least the last 20 years to use current and unique  SSB
MOIs  instead  of  the  original  MOI.   Modifications  are   entirely
consistent with the  law  and  governing  directive,  Title  10,  USC,
Section 628 and AFI 36-2501, and are not prohibited  by  either.   The
applicant’s case clearly fails to present extraordinary circumstances,
nor  is  there  any  evidence  that  the  SSB  process  has  not  been
appropriately applied to her particular case.

A complete copy of the evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant counters the points discussed in  the  advisories.   The
MOIs for SSBs should use the  same  MOIs  as  the  original  selection
boards to avoid prejudice to a member.  Why have AF Pamphlets if  they
are only generalities and are not binding.  The board composition  was
not balanced in a number of  ways.   The  tradition  of  advising  the
AFBCMR that the manner in  which  a  DP  is  earned  is  a  legitimate
consideration in replicating a board process is a burden no  applicant
can overcome and renders meaningless the subsequent  Management  Level
Review (MLR) process based on  corrected  records.   All  DPs  at  the
original  board  were  promoted;  now  she  is  to  believe  that   in
replicating the original board she  was  the  only  DP  that  was  not
selected because  her  record  was  otherwise  not  competitive.   She
concludes by indicating she sees  no  reason  for  the  Air  Force  to
perpetuate the perception that her SSB process replicated the original
board process, even to the degree  considered  acceptable  within  the
Secretary’s discretion. The process makes it virtually impossible  for
an applicant to obtain the information needed to make a case, and then
the information withheld is used  to  rebut  an  applicant’s  case  as
lacking merit or not meeting the burden of showing prejudicial impact.
 She hopes the Board will not use the generalities  and  misstatements
in the advisory opinions.  The SSB process, as it applied to her,  was
unworkable due to the errors made and that key records are  no  longer
available.

The applicant’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 a careful  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded she should be promoted  to  the  grade  of  colonel  by  the
correction  of   records   process,   or   afforded   additional   SSB
consideration. The applicant’s contentions are duly noted; however, we
do not find these  assertions,  in  and  by  themselves,  sufficiently
persuasive to override  the  rationale  provided  by  the  Air  Force.
Although the  applicant’s  record  apparently  was  not  correct  when
considered by the original CY97B, CY98C, and CY99A  colonel  selection
board, it was subsequently amended and properly  considered  by  SSBs.
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  the  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.  Contrary to the applicant’s  speculations,  receipt  of  a
“DP” does not guarantee selection for promotion, even if  her  records
had been correct when considered by  the  original  promotion  boards.
The applicant’s arguments with  respect  to  the  SSB  process,  MOIs,
original benchmarks, board composition, and  the  cited  1998  AFPC/JA
advisory have not established to our satisfaction that the SSB process
was not properly applied in her case  or  that  its  members  did  not
perform their sworn duty in affording her full and fair consideration.
 The offices of primary responsibility have adequately  addressed  the
applicant’s  contentions  and  we  agree  with  their   opinions   and
recommendations.  We therefore adopt the rationale  expressed  as  the
basis for our decision that the applicant has not sustained her burden
of having suffered either an error or an injustice.  In  view  of  the
above and absent persuasive evidence  to  the  contrary,  we  find  no
compelling basis to recommend granting the relief sought.

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  issue(s)   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  this  application  in
Executive Session on 23 May 2006 under the provisions of AFI 36-2603:

                 Ms. Cathlynn B. Sparks, Panel Chair
                 Mr. Jay H. Jordan, Member
                 Ms. Josephine L. Davis, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2005-03542 was considered:

   Exhibit A.  DD Form 149, dated 15 Nov 05, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/PB, dated 19 Jan 06.
   Exhibit D.  Letter, HQ AFPC/DPPPO, dated 24 Feb 06.
   Exhibit E.  Letter, HQ AFPC/JA, dated 3 Mar 06.
   Exhibit F.  Letter, SAF/MRBR, dated 10 Mar 06.
   Exhibit G.  Letter, Applicant, dated 4 Apr 06.




                                   CATHLYNN B. SPARKS
                                   Panel Chair