RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER: BC-2007-03887
		INDEX CODE:  131.00
		COUNSEL:  XXXXXXXXXXXX

		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

He receive a constructive promotion to major, or that he be 
considered for promotion to the grade of major by Special 
Selection Board (SSB) for the Calendar Year 1992C (CY92C) Major 
Central Selection Board with a corrected Promotion 
Recommendation Form (PRF) and be reinstated to active duty with 
back pay and allowances.

________________________________________________________________

THE APPLICANT CONTENDS THAT:

The benchmark records used on the SSB convening on 9 January 
2006 or any subsequent SSB in reference to the CY92C and CY93B  
selection boards were tainted. The Secretary of the Air Force's 
(SAF) Memorandum of Instruction (MOI) used during these boards, 
unconstitutionally required members to consider race and gender 
when selecting officers for promotion to major. As a result of 
the MOI, he was passed over twice for promotion and 
involuntarily discharged from the Air Force. The board which 
considered and selected him for release was given an instruction 
which, in his opinion violated the Equal Opportunity Clause of 
the United States Constitution. While the Air Force granted his 
request to be reconsidered by SSB to major, the benchmark 
records used in the process were tainted. These records included 
PRFs that contained instructions requiring an accurate, unbiased 
assessment of a policy which was clearly in violation of the 
instructions issued to the original board. 

The applicant does not believe it is fair for his records to be 
subjected to benchmark records established under unlawful 
direction which have resulted in tainted records. He believes 
that the correction of records is warranted in this case. To 
meet all SSBs following the unlawful directions given to the 
original board is unfair. 

The initial SSB should be set aside because of the tainted 
records that resulted from the unlawful board directions. The 
only fair and just remedy is to recognize the senior rater's 
promotion recommendation. He does not support any form of 
discrimination, nor should he be victimized by such. 
In support of his application, the applicant submits a legal 
brief and copies of an AF Form 709, Promotion Recommendation. 

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant was considered and not selected for promotion by 
the CY92C and CY93B Major Central Selection Boards.  Both boards 
were conducted using the selection methodology and procedures 
directed by the SAF Memorandum of Decision (Harmless Error 
Procedure for EO Clause-Related Cases) dated 19 February 2004. 
He was honorably discharged on 2 March 2005 in the grade of 
captain. 

On 13 July 2005, the Air Force Board for Corrections of Military 
Records (AFBCMR) considered a similar request and denied the 
applicant's request for reinstatement to active duty with back 
pay and a constructive promotion to major. However the AFBCMR 
granted the applicant consideration for promotion to the grade 
of major by SSBs for CY92C and CY93B Major Central Selection 
Boards. 

________________________________________________________________

AIR FORCE EVALUATIONS:

AF/DPSIDEP recommends approval for replacement of his PRF and 
states it appears that one or more officer performance reports 
(OPRs) were not available and/or considered in the preparation 
of the contested PRF.  The applicant has provided support from 
his senior rater. 

AFPC/DPSIDEP's complete evaluation, with attachments, is at 
Exhibit C.

AFPC/DPB recommends denial and states all aspects of the board 
complied with law, DOD and Air Force policy, instruction and 
guidance. The Air Force acknowledged the possible "tainting" of 
the benchmark records and implemented specific procedures to 
offset any theoretical adverse effect. These procedures have 
resulted in a considerably higher selection rate than normal SSB 
procedures and were used for the applicant's SSBs. 

AFPC/DPB's complete evaluation, with attachments, is at Exhibit 
D.

AFPC/DPPPOO recommends denial as the applicant was granted an 
SSB for CY92C and CY93B boards based on the possibility that he 
may have been harmed by the equal opportunity clause contained 
in the MOI used by the original boards. In addition, a SAF 
approved modified selection method was used in determining 
selection/nonselection status. The existence of an error or 
injustice, if any, was corrected by virtue of the SSB granted 
for the CY92C and CY93B Major CSBs. 

AFPC/DPPPOO's complete evaluation is at Exhibit E. 

________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The Counsel for the applicant states that the advisory opinions 
attempt to defend an impermissible promotion reconsideration 
process. The Air Force finds itself in an untenable position, 
having engaged in unconstitutional activities in an effort to 
socially engineer the officer corps, having to reverse its 
position under judicial scrutiny, and then being faced with the 
consequences of its illegal activity. 

The promotion board that originally considered the applicant for 
promotion was conducted contrary to the Fifth Amendment to the 
United States Constitution. That is not in dispute and is 
acknowledged by the SAF in his 19 February 2004 MOI. It is clear 
that the only reason for conducting a "harmless error" test is 
to correct an identified error. The error in question pertains 
to the use of race and gender as factors in the promotion 
selection process. The problem, however, lies with the Air Force 
leadership’s decision to have him compete against files that are 
tainted by the original error. To be selected for promotion, the 
applicant will have to score better than one of the files that 
were originally selected for promotion. But whether the files of 
those selected for promotion were influenced by the 
unconstitutional instruction is unknown. There is no record that 
demonstrates how the original selection board regarded and 
applied the unconstitutional instructions. The presumption of 
regularity would lead to the conclusion that the officers at the 
board followed their orders, which leads to the conclusion that 
race and gender were factors considered by the board. 


AFPC/DPPPOO indicates that the applicant has presented 
insufficient relevant evidence to demonstrate the existence of 
probable error or injustice. It is ironic and sad that there is 
a notion in some quarters that the burden in this matter is with 
the applicant, given the misconduct by the Air Force. In fact, 
the applicant has carried the burden. He has demonstrated the 
error that was visited upon him. Further, the MOI from the SAF 
establishes that the process is expected to result in a 
considerably higher selection rate. The AFBCMR should be aware 
that Constitutional protections are individual, not group 
oriented and the effort to use a statistical analysis of how a 
mythical officer would benefit from the changed process is 
irrelevant. The issue is whether the applicant, as an individual 
whose Constitutional right to due process was denied, will be 
treated fairly. Use of tainted files for competition does not 
meet that standard. 

Given the foregoing, the AFBCMR is respectfully requested to 
direct promotion of the applicant. His file clearly demonstrates 
that his performance of duty and potential for higher 
responsibility are worthy of promotion. The facts also 
demonstrate that the selection process of the original board was 
constitutionally defective and that the so called "harmless 
error test" does not achieve the objective of establishing 
harmless error. 

Counsel for the applicant's complete response, with attachments, 
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 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 an error or injustice.  After 
thoroughly reviewing the applicant’s submission, the Board is 
not persuaded that his request should be granted. Counsel’s 
contentions are duly noted; however, in our opinion, the 
detailed comments provided by the appropriate Air Force offices 
of primary responsibility adequately address those allegations. 
In regards to the recommendation made by AFPC/DPSIDEP to grant 
relief for a corrected PRF, the Board has thoroughly reviewed 
the documentation submitted with this appeal, including the 
statements from the rater and senior rater of the contested PRF; 
however, these statements are not sufficiently persuasive to 
demonstrate that an error existed on the PRF.  In this respect, 
the Board notes that the senior rater had access to and 
knowledge of the applicant’s record at the time it was written 
and wrote the PRF recommendation based on those facts and it was 
his (senior rater's) responsibility as to what was written into 
Section IV of the PRF.  In addition, the Board believes that it 
was the applicant’s responsibility to show he made an attempt to 
update his record prior to the CY92C and CY93B boards.  
Furthermore, the Board notes that the PRF is not the only 
document and source of information used by a Central Selection 
Board and we therefore find insufficient evidence that the PRF 
was the sole reason for the applicant’s nonselection to major. 
In respect to the tainted benchmark records, we note that the 
Air Force implemented specific procedures that complied with the 
law, Department of Defense and Air Force policy, instructions, 
and guidance to counterbalance any theoretical adverse effect 
caused by the so called tainting of the original benchmark 
records. In view of these procedures, we are not persuaded the 
applicant's nonselection for promotion by SSB is due to tainted 
benchmark records. Finally, the applicant has not provided 
sufficient evidence that would lead us to recommend direct 
promotion to the grade of major. It is our view that the 
determination of who is best qualified for promotion is best 
left to a board of officers empowered by law to make such 
decisions. Therefore, in the absence of evidence to the 
contrary, we believe that he has been provided full and fitting 
relief.

________________________________________________________________

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-
2007-03887 in Executive Session on 8 October 2008, under the 
provisions of AFI 36-2603:

	XXXXXXXXXXXXXXXXXX, Panel Chair
	XXXXXXXXXXXXXXXXXX, Member
	XXXXXXXXXXXXXXXXXX, Member

The following documentary evidence pertaining to Docket Number 
BC-2007-03887 was considered:

	Exhibit A.	DD Form 149, dated 21 Nov 07, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPSIDEP, dated 11 Mar 08.
	Exhibit D. Letter, AFPC/PB, dated 24 Apr 08, w/atchs.
	Exhibit E. Letter, AFPC/DPPPOO, dated 27 May 08.
	Exhibit F.	Letter, SAF/MRBR, dated 27 Jun 08.
	Exhibit G. Counsel’s Response, dated 23 Jul 08, w/atchs.




	XXXXXXXXXXXXXXXX
	Panel Chair