RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2006-
00134
                                             INDEX CODE:  131.00

                                             COUNSEL:  NONE

                                             HEARING DESIRED:   YES




MANDATORY CASE COMPLETION DATE:  16 JULY 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

He be given a direct promotion to the grade of lieutenant  colonel,
and that he be allowed to resume his Air  Force  career  on  active
duty.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Based on a previous recommendation by the AFBCMR, he met a  Special
Selection Board (SSB), and was selected for promotion to the  grade
of major, with an effective date of rank (DOR) of 1 Jun 98.   As  a
result of this correction his involuntary  discharge  should  never
have happened and he would have had the opportunity to compete  for
promotion with his peer group to lieutenant colonel.  He  does  not
believe that a duly constituted selection board would  be  able  to
make a determination about his fitness for promotion because he was
not allowed to remain in the Air Force and compete  with  his  peer
group.  There is sufficient relevant evidence  to  demonstrate  the
existence of an error/injustice to warrant  his  promotion  to  the
grade of lieutenant  colonel  through  the  correction  of  records
process.

In support of his appeal, applicant submitted  a  copy  of  Special
Order JB-006270, AFBCMR Record of Proceedings, dated 21 Jun 05, and
AFBCMR Directive, dated 21 Jun 05.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant was considered and not  selected  for  promotion  to  the
grade of major by the Calendar Years 1997 and 1998  (CY97  &  CY98)
Medical Service Corps (MSC) Major Selection Boards.

Based  on  his  two  promotion  nonselections,  he  was   honorably
discharged on 28 February 1999.  He completed 12  years,  8  months
and 24 days of active military service.

On 2 May 05, the AFBCMR considered and partially granted an  appeal
from the applicant, in which he requested that he  be  promoted  to
the grade of major and be allowed to continue his Air Force career.
 He challenged the nonselections before the AFBCMR,  alleging  that
the Memorandum of Instruction (MOI) used for the  promotion  boards
introduced subjective consideration of race and gender in violation
of his equal protection rights.  The Board concluded that  relevant
evidence had been presented to demonstrate the existence  of  error
or injustice and provided the applicant promotion consideration  by
SSB for the CY97D Major MSC Central Selection Board.  The  decision
was based on the decision of the U.S.  Court  of  Appeals  for  the
Federal Circuit in Berkley v. United States, 287  F.3d  1076  (C.A.
Fed 2002).  The Board noted  that  if  the  applicant  were  to  be
selected for promotion by this SSB, he should submit a new  request
to the Board if he wanted to continue his Air  Force  career.   The
Board also declined to promote the applicant directly,  citing  the
oft quoted language that a selection board is in the best  position
to determine if the applicant would be among those  best  qualified
for promotion.

Applicant met the 26 Sep 05 SSB which considered him for  promotion
by the CY9705  (5  Nov  97)  Major  MSC  Central  Selection  Board.
Applicant was selected for  promotion  with  a  date  of  rank  and
effective date of 1 Jun 98.  Based on this date of rank,  he  would
have been eligible to meet the CY02A (19 Feb 02) Lt Col MSC Central
Selection Board.

[Examiner’s Note:  Applicant is currently serving on active duty as
a Lieutenant Commander (0-4) with the Navy.  He  went  active  duty
with the Navy approximately 90 days after he separated from the Air
Force.]

___________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPOO recommends denial of the applicant’s request for direct
promotion to lieutenant colonel.  An officer may be  qualified  for
promotion, but, in the judgment of a selection board  (vested  with
discretionary authority to make the selections) he may not  be  the
best qualified  of  those  available  for  the  limited  number  of
promotion vacancies.  There is no  evidence  to  suggest  that  the
applicant would have been a selectee by the  CY02A  Lt  Col  board.
Further, to grant a direct promotion would be unfair to  all  other
officers who have extremely competitive records and  also  did  not
get promoted.

The complete DPPPOO evaluation is at Exhibit C.

AFPC/JA  recommends  approval  of  the  applicant’s   request   for
reinstatement to active duty  in  the  Air  Force.   They  have  no
problem with his request for reinstatement in the Air  Force;  this
tracks with the AFBCMR’s suggestion that he make such a request  if
selected for promotion to the grade of major, which he was  in  Sep
05 by SSB.  To promote the applicant to lieutenant  colonel  before
he returns to active duty  to  actually  serve  time  as  a  major,
however, is an entirely different  matter.   Promotion  is  not  an
entitlement  or  reward  for  past  service;  rather,  it   is   an
advancement to a higher grade that must be earned and is  based  on
past  performance  and  future  potential.  By  law,  officers  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, applicant, who has been awarded promotion to major by an  SSB
with a retroactive effective date, has obviously  never  served  on
active  duty  in  that  grade  and  consequently   never   received
performance reports as a major.  Nevertheless, he proposes a remedy
that in fact would constitute a totally  gratuitous  windfall  that
was never earned and would entail credit for a grade  in  which  he
has never served a day.  Not only would applicant in that  scenario
have failed to  establish  himself  as  among  the  requisite  best
qualified, he would fail to establish that he  was  even  minimally
qualified.  They do not believe this could  ever  be  considered  a
supportable outcome that is fair to the Air  Force.   They  suspect
the Board for much the same reasons rejected his request for direct
promotion to major.

AFPC/JA has no objection to the Board granting applicant’s  request
to return to active duty in the Air Force, if it is to  enable  the
applicant to serve in the grade of major and ultimately compete for
promotion to  lieutenant  colonel.   To  directly  promote  him  to
lieutenant colonel in the process, however, would exceed  even  the
most liberal notion of the concept  of  injustice.   They  strongly
recommend against a direct promotion to lieutenant colonel.

The complete JA evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In response to the DPPPOO evaluation, applicant contends that:

      (1) Apparently  AFPC/DPPPOO  considers  his  application  for
appointment to  lieutenant  colonel  completely  unrelated  to  the
AFBCMR’s  previous   finding   (BC-2004-01721)   that   there   was
“sufficient relevant evidence to support the existence of error  or
injustice”  concerning  his  promotion  to   major.    The   AFBCMR
determined he should meet a Special Selection Board (SSB), he was a
selectee by that SSB, and he believes  this  request  is  the  next
appropriate step in  affording  him  relief  due  to  the  original
injustice.


      (2)  There is no evidence to suggest that he would  not  have
been a selectee by the CY02A  Lieutenant  Colonel  Board.   He  was
unjustly denied the opportunity to continue serving on active  duty
in the United  States  Air  Force,  and  thus  he  was  denied  the
opportunity to compete for promotion along with his peers.


      (3)  He disagrees with the  comment,  “Further,  to  grant  a
direct promotion would be unfair to all  other  officers  who  have
extremely competitive records and also did not get  promoted.”   He
does not believe this is a question of fairness to those  who  were
afforded reasonable consideration.  The significant issue  is  that
he was not afforded the same reasonable consideration for promotion
due to the previous injustice.


In response to the JA evaluation, applicant contends that:

      (1)  JA is incorrect in assuming  a  direct  promotion  would
“entail credit for a grade in which the member never served a day.”
  Upon  being  involuntarily  separated  from  the  Air  Force,  he
immediately sought application to the U.S. Navy.  He is currently a
lieutenant  commander  on  active  duty  in  the  Navy,  which   is
equivalent in grade to that of major in the Air Force.

      (2)  There is no evidence to establish that he is  not  among
the “requisite best qualified.”  Because he was unjustly denied the
opportunity to continue to serve on active duty in the  Air  Force,
he was denied the opportunity to compete for promotion  along  with
his Air Force contemporaries.

He highlights some of his accomplishments since  his  promotion  to
major in June 1998.

In summary, he finds himself in an unprecedented circumstance which
distinguishes his case from the  norm  and  warrants  extraordinary
action in order to afford him full and complete relief.  Had he not
been involuntarily and improperly discharged, he would have had the
opportunity to demonstrate his value to the Air Force and potential
to serve in the next higher grade.  While serving in the  Navy,  he
has acquired a unique breadth of experience which has made  him  an
arguably more valuable asset in the joint  environment  of  today’s
United States military with broader perspective compared to most of
his contemporaries.  With an eight  year  gap  in  his  record,  he
believes, he will never be able to compete  for  promotion  to  the
grade  of  lieutenant  colonel  on  a  fair  and  equitable  basis.
Therefore, he requests direct promotion to the grade of  lieutenant
colonel with date of rank determined as if he  had  met  the  CY02A
selection board and a return to active duty in  the  Air  Force  as
soon as possible.

Applicant’s complete response is at Exhibit F.

___________________________________________________________________

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  regarding  the
applicant’s request for direct promotion to the grade of lieutenant
colonel.  In this regard, we agree with the rationale  provided  by
the Air Force offices of primary responsibility on this issue.   We
note that the applicant in his rebuttal provides counter  arguments
to those made against his direct promotion:  (1)  He  believes  his
promotion to lieutenant colonel  is  the  “next  appropriate  step”
given the AFBCMR’s determination in his prior case he had been  the
victim of an error or injustice, (2) There is nothing to suggest he
would not have been a  selectee  for  promotion  to  the  grade  of
lieutenant  colonel  if  he  had  not  been  unjustly  denied   the
opportunity to continue serving on active duty in  the  Air  Force,
(3) He does not believe his direct promotion to lieutenant  colonel
would be unfair to his contemporaries since he was not afforded the
same reasonable consideration for promotion as they have been,  (4)
He is presently serving in the equivalent grade of major in the U S
Navy after entering that service shortly after leaving active  duty
in the Air Force, (5) There is no evidence  to  establish  that  he
would not have been among the best qualified for promotion  had  he
not been unjustly denied the opportunity to continue  to  serve  on
active duty in the Air Force, and (6) He provides highlights of his
“accomplishments since promotion to major in June 1998,”  which  it
appears he  believes  counters  the  assertion  he  would  fail  to
establish he was even minimally  qualified  for  direct  promotion.
After reviewing the applicant’s arguments for direct promotion,  it
appears he is primarily arguing for promotion as recompense for the
injustice the Board has previously validated he suffered.  We would
point out that the relief granted by the Board in that instance was
to provide the applicant, as far as possible,  fair  and  equitable
consideration for promotion to the grade of major.  This  was  done
through the  SSB  process  where  the  applicant  was  subsequently
selected for promotion based on  the  strength  of  his  record  of
performance.  Although a beneficiary of this  established  process,
the applicant now argues  he  cannot  receive  fair  and  equitable
consideration, especially given the length of time he has been  out
of the Air Force.  We disagree.  Even lending some credence to  his
arguments, we believe that the merits of the established  promotion
process outweigh his arguments and should be given priority in  our
determination of what is full and fitting  relief.   We  note  that
this is in keeping with the Board’s actions in  previous  cases  of
this type.  The Board normally only substitutes  its  judgment  and
authority for that of a duly constituted  promotion  Board  in  the
most egregious of circumstances where it has been established  that
an  applicant  did  not  and  cannot  receive  fair  and  equitable
promotion  consideration  and  the  applicant  has  strong  support
validating their qualification for promotion to the  higher  grade.
Since the applicant has not yet been considered  for  promotion  to
lieutenant  colonel,  we  believe  his  assertions  regarding   his
promotion opportunity are premature.   Additionally,  although  the
applicant points out he has been serving in the grade of 0-4 in the
Navy, we note that he has been doing so for less than two years,  a
period of time much less than that normally required for  promotion
consideration to the grade of  lieutenant  colonel.   Although  the
list  of  accomplishments  the  applicant  has  presented   appears
impressive,  this  Board  cannot  validate   they   establish   his
qualifications for promotion or know how they would be viewed  when
stacked against  his  contemporaries  in  a  competitive  promotion
process.  Therefore, we find no basis  to  recommend  granting  the
applicant’s request for direct promotion.

4.  The applicant has indicated he would like to be  reinstated  to
active duty in the Air Force whether or not he is directly promoted
to lieutenant colonel.  Given the Board’s previous action and their
charge that the applicant should request reinstatement should he be
selected for promotion  to  major,  we  recommend  his  request  be
granted.  Recognizing that upon reinstatement, the  applicant  will
immediately become eligible  for  promotion  consideration  to  the
grade of lieutenant colonel, we  believe  action  is  necessary  to
provide him the opportunity to build a record of performance  as  a
major before any nonselections for promotion would be held  against
him.  We note that the Board has previously, in similar situations,
directed that any nonselections for promotion in the  primary  zone
be set aside until such time as the applicant had received at least
three (3) Officer Performance Reports with at  least  250  days  of
supervision.  We believe this relief is appropriate in  this  case.
Additionally, we note the time given to the applicant  to  build  a
record of performance will also facilitate review of his records to
determine if any of his previous OPRs should be amended to  reflect
his retroactive promotion to major and afford him  sufficient  time
to  complete  the  appropriate  level  of   professional   military
education (PME).  We believe these actions provide the applicant  a
basis to build a record of performance to compete for promotion  to
lieutenant colonel.  We  recognize  this  relief  is  not  perfect.
However, the ability of the Board to craft relief that will make an
applicant completely whole is  often  times  limited  by  the  very
circumstances of the case.  In this instance, there is  no  way  to
recover the years that have elapsed since the applicant left active
duty  or  to  restore  completely  the  career  opportunities   the
applicant may have lost.  Given the evidence of  record  and  after
weighing the circumstances of this case, we believe that the relief
we are recommending provides the applicant full and fitting relief.
 Therefore, we recommend the applicant’s records  be  corrected  as
indicated below.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.   He  was  not  released  from  extended  active  duty  on
28 February 1999, but was continued on active duty and was  ordered
PCS to his home of record or  home  of  selection  pending  further
orders.

       b.   Any  nonselections  for  promotion  to  the  grade   of
lieutenant colonel in the primary zone prior to receiving at  least
three OPRs with at least 250 days of supervision will be set aside.


___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2006-00134 in Executive  Session  on  18  May  2006,  under  the
provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Gregory A. Parker, Member
      Ms. LeLoy W. Cottrell, Member

All members voted to correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 3 Jan 06, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPOO, dated 10 Feb 06.
     Exhibit D.  Letter, AFPC/JA, dated 28 Feb 06.
     Exhibit E.  Letter, SAF/MRBR, dated 3 Mar 06.
     Exhibit F.  Memorandum, Applicant, dated 26 Apr 06.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair





AFBCMR BC-2006-00134




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to [Applicant], be corrected to show that:

     a.  He was not released from extended active duty on 28
February 1999, but was continued on active duty and was ordered
permanent change of station (PCS) to his home of record or home of
selection pending further orders.

        b.  Any nonselections for promotion to the grade of
lieutenant colonel in the primary zone prior to receiving at least
three Officer Performance Reports (OPRs) with at least 250 days of
supervision, in the grade of major will be set aside.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency