RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2006-00638

      XXXXXXX    COUNSEL: GARY MYERS

      XXXXXXX    HEARING DESIRED: YES

MANDATORY CASE COMPLETION DATE: 3 SEPTEMBER 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be directly promoted to lieutenant colonel at the earliest possible
date and he receive back pay, allowances, and credit for time in grade
for pay, promotion and  retirement  purposes  from  the  date  of  his
promotion to the present.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 24 February 2004, the Board granted him a special  selection  board
(SSB) relief for promotion consideration for  lieutenant  colonel  for
the  99A  through  03A  promotion  selections  boards.   Two   officer
performance reports (OPRs) were  altered  by  the  Board  as  well  by
providing command push language. The SSB process did  not  select  the
applicant for promotion.

This law firm mounted  multiple  assaults  upon  the  SSB  system.  It
contends the SSB process is  a  system  that  is  both  secretive  and
unfair. They made inroads in the case of Homer  v.  Roche  before  the
Federal District Court for the District of Columbia  where  the  Court
called the SSB process "opaque" to scrutiny.

The firm further assesses that, as the Board well knows  the  definite
promote (DP) promotion rate with SSBs is 50%, a ludicrous number  when
compared to regular promotion selection boards.

Applicant's case is no less concerning. The changes made by the  Board
to two offending OPRs rendered him a more than  viable  candidate  for
promotion to lieutenant colonel had he been considered  by  a  regular
promotion selection board. This conclusion was confirmed by  his  AFPC
non-selection counselor, who told  him  that  the  only  void  in  his
records was a lack of "command push statements" in the corrected OPRs.
There is now no void. The data does not sustain the notion that  SSB's
are fundamentally the same as regular  separation  boards.   They  ask
that the Board, in light of his superlative record,  directly  promote
him to lieutenant colonel.

In support of his application, applicant provides a legal brief.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on  extended  active  duty  in  the
grade of major with a date of rank of 1 April 1995.

On 6 June 2000, the Board directed the applicant's OSB be corrected to
reflect the citation  for  the  Aerial  Achievement  Medal  (AAM)  and
provide SSB consideration for the 99A lieutenant  colonel  board  (see
Exhibit B).

On 8 January 2004, the Board directed the last line of the  rater  and
additional rater's comments on two OPRs be amended to include  command
recommendations and that he be considered for promotion  by  SSBs  for
the CY99A through CY03A  Lt  Colonel  Central  Selection  Boards  (see
Exhibit B).

On 24 May 04, applicant met the CY99A, CY99B, CY00A, CY01B, CY02A  and
CY03A SSBs for promotion to lieutenant colonel and was nonselected. He
met an additional SSB on 10 January  2005  for  consideration  by  the
CY99A lieutenant colonel and was nonselected again.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPOO recommends denial and  states  insufficient  evidence  has
been presented to demonstrate  the  existence  of  probable  error  or
injustice in regard to the applicant's request for direct promotion to
the grade of 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 any of  his  promotion  boards  to  lieutenant
colonel. Further, to grant a direct promotion would be unfair  to  all
other officers who have extremely competitive records but also did not
receive a sufficient score to get promoted.  Based  on  the  evidence,
DPPPE does not support direct promotion to lieutenant colonel.

AFPC/DPPPOO evaluation is attached at Exhibit C.

AFPC/JA recommends  denial  and  states  that  there  is  insufficient
evidence to directly promote  the  applicant  through  the  correction
board process, and there is no material error or injustice that  would
warrant further relief.

As we have stated previously to this Board, the process  permitted  by
Air Force policy whereby a DP may be  given  by  judgment  call  of  a
senior rater who has no comparative records at that time to review-and
no mandatory quota limits to constrain him or her-allows that  process
to attach a DP designation to an individual record without  regard  to
other records it will be competing  against.  When  this  occurs,  the
totality of the individual record which the DP is  being  attached  to
may not be competitive  in  the  rigorous  comparisons  that  are  the
essence of all promotion boards. It is  logical  and  reasonable  that
this difference in  the  processes  of  obtaining  DPs,  and  not  any
systemic Air Force policy or bias passed on to SSBs  considering  such
cases, would account for differences in the promotion rates  of  these
SSBs. Most importantly, a member who competes at  an  SSB  with  a  DP
recommendation is not at a disadvantage. To the contrary, that officer
has an additional plus factor in his/her record. What that  additional
factor will not do, however, is  render  an  otherwise  non-promotable
record promotable.

Promotion boards are sworn to perform their duties  properly  and,  in
the absence of evidence to  the  contrary,  we  presume  they  do  so.
Certainly, a record with a DP has no guarantee of  promotion;  but  it
just as certainly-as to that one factor in the overall  record-has  an
advantage over records with promotion recommendations below DP.

Finally, with respect  to  the  request  for  direct  promotion,  both
Congress and DOD have made clear their intent that  errors  ultimately
affecting promotion should be resolved through the use of SSBs. See 10
V.S.C. 628(b) and DOD Directive 1320.11, para D.l.  Air  Force  policy
mirrors that  position.  AFI  36-2501,  Chapter  6.  Where  many  good
officers are competing for a limited number of  promotions,  only  the
best officers can and should be promoted. We continue to believe  that
SSBs, armed with  access  to  appropriate  competing  records  and  an
appreciation of what those records mean-an  appreciation  gained  from
years of military experience-represent the fairest and  best  practice
to achieve  this  purpose.  The  Board's  long  standing  practice  of
considering  direct  promotion  only   in   the   most   extraordinary
circumstances, where SSB consideration has been shown  to  be  totally
unworkable,  is  appropriate,  in  keeping  with   federal   law   and
regulation.  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 his particular case.


AFPC/JA evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
28 April 2006 for review and response 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 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 he should be promoted to the grade of lieutenant colonel  by
the correction of records process.  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.   The  Board  notes  the  applicant’s  records  were
subsequently amended and properly considered by SSBs for consideration
for promotion to  lieutenant  colonel  for  the  CY99A  through  CY03A
promotion selection boards. Contrary to the applicant’s  speculations,
receipt of a “DP” does not guarantee selection for promotion, even  if
his records had been correct when considered by the original promotion
boards.  The Board believes 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 his  burden  of  having  suffered  either  an  error  or  an
injustice.  In the absence of evidence to the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

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  Docket  Number  BC-2006-00638
in Executive Session on 14 June 2006, under the provisions of AFI 36-2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. James A. Wolffe, Member
      Ms. Jan Mulligan, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 23 Feb 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPOO, dated 14 Apr 06.
   Exhibit D.  Letter, HQ AFPC/JA, dated 18 Apr 06.
   Exhibit E.  Letter, SAF/MRBR, dated 28 Apr 06.




                                   CHARLENE M. BRADLEY
                                   Panel Chair