RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02894
            INDEX CODE:  131.00

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  25 MAR 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

All  reference  related  to  his  records  having  met  the   CY05A
Lieutenant Colonel Central  Selection  Board  be  removed  and  his
records be amended to reflect that he was selected for promotion in
the primary zone (IPZ) by  the  CY06A  Lieutenant  Colonel  Central
Selection  Board  or  that  he  received   a   Secretarial-Directed
Promotion  or  in  the   alternative,   Special   Selection   Board
consideration for the CY06A Lieutenant  Colonel  Central  Selection
Board with a “Definitely Promote” recommendation.

___________________________________________________________________

APPLICANT CONTENDS THAT:

His records should not have met the  CY05A  Lt  Col  board  as  his
primary zone.  He states that his consideration violated DoD policy
and deprived him the opportunity to compete for promotion with  his
peers on an equal basis.

He graduated from the Air Force Academy in May 91.   After  serving
9 years and 8 months, he joined the Air  National  Guard  (ANG)  in
Jan 01.  In Feb 03, he voluntarily returned to active duty, due  to
his separation, time in the ANG, and subsequent  return  to  active
duty, there were  inconsistencies  in  his  promotion  and  service
dates.  His peers/comptemporaries, who graduated with him from  the
US Air Force Academy (USAFA) in 91, met the CY06A as their  primary
promotion board.  He should have competed with  his  peers  in  the
primary zone.

In support of his appeal, applicant submitted a personal statement;
copies of his Officer Performance  Reports  from  29  Apr  96  thru
25 Feb 06, and a letter of  support,  from  his  deputy  commander,
17 Aug 06.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant entered active duty under the Voluntary Recall Program on
26 Feb 03 as a major with a date of rank (DOR) of 4  Jan  02.   His
Total  Active  Federal  Commissioned  Service  Date   (TAFCSD)   is
23 Jul 92.  His current duty title is Special Operations Pilot  MC-
130.

Applicant was considered and nonselected by  the  CY05A  and  CY06A
Lieutenant Colonel Central Selection Boards.

Applicant's  OPR  profile  for  the  last  five  reporting  periods
follows:

      PERIOD ENDING    OVERALL EVALUATION

      22 Jan 02  Meet Standards (MS)
      22 Jan 03  MS
      25 Feb 03  AF Form 77
      25 Feb 04  MS
      25 Feb 05  MS
      25 Feb 06  MS

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPO reviewed this application and recommended denial.

Based on the applicant’s DOR, he was eligible  to  meet  the  CY05A
(sic) Lt Col board as an IPZ eligible.  Prior  to  entering  active
duty, applicant was advised, in a letter dated 29 Jan 03 that based
on the current board schedules he would be eligible  for  promotion
IPZ by the CY05A Lt Col board.  This was based on his adjusted  DOR
of 1 Oct 01.  Although his DOR was not adjusted, his DOR  from  the
ANG still made him eligible to meet the CY05A Lt Col  board  as  an
IPZ eligible.  On 30 Jan 03, applicant accepted the offer to return
to active duty.

For Lt Col, the desired promotion timing is 16 years +/- 1 year and
is based on years of commissioned military service plus  all  entry
grade credit.  In addition, per DODI 1320.14  Commissioned  Officer
Promotion Program Procedures, states promotion timing is a 12-month
average  of  the  total  active  service  for  due-course  officers
promoted during each month of the fiscal year.  Due-course officers
are those promoted IPZ and on-time.  Had the applicant remained  on
active duty and competed/selected for promotion to major  with  his
year group, he would have received a DOR to major between 1 Feb  02
and 30 Sep 02 thereby making him eligible IPZ by the CY06A  Lt  Col
board.  Since he was promoted in the Guard and received an  earlier
DOR than his peers, he was no longer eligible to meet  his  Lt  Col
board with his peers.  Eligibility for promotion is  based  on  DOR
criteria, not year group as  many  factors  can  contribute  to  an
officer’s year group changing.  In addition, by law, SecAF has  the
final  decision  in  establishing  the  eligibility  criteria   for
promotions and can thereby  waive  policy.   The  applicant’s  year
group or DOR, in itself, are not reasons for nonselection.

HQ  AFPC/DPPPO’s  complete  evaluation,  with  attachments,  is  at
Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his original contentions  and  disagreed  with
the recommendation.  Additionally, he explained  the  circumstances
surrounding his DOR resulting in his consideration and nonselection
by the CY05A Lt Col board.

Applicant amended his original request and now requests his records
be corrected  to  indicate  he  was  considered  and  selected  for
lieutenant  colonel  by  the  CY06A  Lieutenant   Colonel   Central
Selection Board.

By memorandum, undated, applicant provided a  further  response  to
the Air Force evaluation explaining the  circumstances  surrounding
why he believes his “early  promotion”  consideration  was  not  in
accordance with DOD Instructions, and  an  injustice,  in  that  it
deprived him of  his  one  and  only  opportunity  to  compete  for
promotion with his peers on an equal basis.

Applicant’s complete response is at Exhibit E.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPPPO provided a further analysis of the applicant’s  case,
stating, in part, the original advisory contained an administrative
error and a corrected copy was accomplished.   However,  regardless
of applicant’s DOR, 4 Jan 02 or 1 Oct 02, applicant would have been
eligible to meet the CY05A  Lieutenant  Colonel  Central  Selection
Board, which convened on 6 Jul 05.

Prior to any officer  entering  active  duty  under  the  voluntary
recall program, a grade and date of  rank  (DOR)  determination  is
made using whatever records are  available.   This  computation  is
just an estimate as many factors could affect this  date;  inactive
service, date of entry on active duty, etc.   Until  the  applicant
enters active duty and all records are received, a firm DOR  cannot
be determined.  Upon entering  the  Air  Force  each  applicant  is
advised that based on their calculated DOR,  what  promotion  board
they will meet, and that these boards could be earlier  or  delayed
based on future board schedules.  Applicant was  advised  prior  to
entering active duty that he would be IPZ  eligible  in  CY05.   As
stated in the previous paragraph, if the applicant  had  maintained
his DOR of 4 Jan 02, he would have still met the CY05 board.

As stated in paragraph  'b'  and  in  the  original  advisory,  the
applicant was aware of what board he was eligible to meet prior  to
entering active duty.  If the applicant did not agree  with  it  at
that point, he should have not agreed to return to active duty, but
remain in the Air National Guard (ANG).   We  do  not  believe  the
applicant, or any of the officers who returned to active duty under
the recall program, were misled.  In addition,  the  applicant  had
more time on active duty to build a competitive record than many of
the officers who entered at the same time he did.

The applicant continues to indicate that it was AFPC's decision  to
place him before  the  CY05A  Central  Selection  Board.   This  is
incorrect.   Law,  10   U.S.C.   Section   619,   eligibility   for
consideration for promotion: time-in-grade and other  requirements,
establishes   the   eligibility    requirements    for    promotion
consideration  no  less  than   3-years   time-in-grade   for   IPZ
consideration and at least one year on active duty.  The  Secretary
of the military department concerned prescribe a period of time  on
active  duty  greater  than  one  year  and   establish   the   DOS
requirements, but once those are  established  by  the  SecAF,  the
eligibility criteria is set.  AFPC has no authority  to  remove  an
eligible officer's name from consideration if he meets the criteria
established by the SecAF.  In addition, an officer may not  ask  to
have his name removed from a board  if  he  meets  the  eligibility
criteria established.

We  stand  by  our  previous  recommendation  to   disapprove   the
applicant's request for direct promotion by the  CY06A  Lt  Colonel
Central Selection Board.  We have no recommendation if the  board's
decision is to grant relief over our objections.

HQ  AFPC/DPPPO’s  complete  evaluation,  with  attachments,  is  at
Exhibit F.


HQ AFPC/JA reviewed this application and recommended denial.

Applicant cites DOD Instruction 1320.13, para 4.1 and Table  E2.T1,
for the proposition that he should have been required to  meet  the
CY06 promotion board  IPZ  with  his  original  Air  Force  Academy
graduate year group rather than having been “accelerated” to meet a
promotion board a  year  earlier.   Eligibility  for  promotion  is
established by law and department Secretarial  policy.   Title  10,
USC, Section 619(a)(2), establishes the eligibility for officers in
the grade of major to be considered IPZ for promotion to lieutenant
colonel: they are required to complete three  years  time-in-grade,
as of the board convening date, counting from  their  CGDOR.   This
requirement is implemented in the Air Force by AFI 36-2501, Atch 2,
para A2.3.1.  Based on applicant’s (corrected) date of  rank  as  a
major of 4 Jan 02, he was eligible and properly scheduled  for  the
CY05 lieutenant colonel promotion board.

DOD Instruction table cited  by  applicant  does  not  establish  a
requirement for promotion timing.  Para 6.1.3.1. of that  directive
echoes the Congressional goal established in  the  Defense  Officer
Personnel Management Act (DOPMA) that promotion timing and  minimum
opportunity be “relatively similar” for all officers of a grade and
promotion category, but it states  that  the  numbers  provided  in
Enclosure 2 are “desirable,” not absolute.  In  short,  applicant’s
eligibility for promotion was properly set by the SAF based on  his
CGDOR, and he was not “accelerated” to meet  a  board  any  earlier
than the date properly set by law.

It is important to note, contrary to applicant’s  apparent  belief,
there is no requirement in law or regulation that an  officer  must
remain with the original year group that she/he entered active duty
with.  When applicant voluntarily left active duty in 2001, he left
his active duty year group and joined the ANG.   His  promotion  in
the ANG resulted in an  earlier  DOR  than  he  likely  would  have
received had he remained on active duty.  This  promotion  and  DOR
nevertheless were properly awarded IAW applicable ANG  regulations.
As a consequence,  applicant’s  meeting  the  CY05  board  did  not
constitute being “accelerated” to receive an earlier consideration.

Applicant’s second reason in support of his request is that  having
met the CY05 promotion board was simply not just or fair.  However,
applicant has failed to meet  this  burden.   As  noted  by  DPPPO,
applicant was advised during the application process for  voluntary
return to active duty, that he would be eligible for promotion  IPZ
by the CY05 lieutenant colonel promotion board.   Consequently,  he
was on notice that he would meet the CY05A board before he was ever
obligated to return to active duty.

HQ AFPC/JA’s complete evaluation is at Exhibit G.

___________________________________________________________________

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant
on 23 Mar 07 for review and comment within 30  days.   As  of  this
date, no response has been received by this office (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 an error or injustice.  The  applicant
believes his records should not have met the CY05A Lt Col board  in
the primary zone.  We  took  notice  of  the  applicant's  complete
submission in judging the merits of the  case.   However,  after  a
thorough  review  of  the  evidence  of  record   and   applicant's
submission, we are not persuaded that his  assertions,  in  and  by
themselves, are sufficiently persuasive to override  the  rationale
provided by the Air Force.  The applicant  argues  he  should  have
been considered for promotion in the  primary  zone  (IPZ)  by  the
CY06A Lieutenant Colonel Central Selection  Board.   Applicant  was
released from active duty and joined the ANG.  His promotion in the
ANG resulted in an earlier DOR than he likely would  have  received
had  he  remained  on  active  duty.   This   promotion   and   DOR
nevertheless were properly awarded IAW applicable ANG  regulations.
Therefore, we agree with the opinions and  recommendations  of  the
Air Force offices of primary responsibility and adopt the rationale
expressed as the basis for our  decision  that  the  applicant  has
failed to sustain his burden of having suffered either an error  or
injustice.  Hence, in the absence of  persuasive  evidence  to  the
contrary, we find no compelling basis  to  recommend  granting  the
relief sought in this application.

Additionally, we note that 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.  They may be qualified but – in the judgment  of  selection
board members vested  with  discretionary  authority  to  make  the
selections –- he/she  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; i.e., a  showing  that  the  officer’s
record cannot be reconstructed in such a manner  so  as  to  permit
him/her to compete for promotion on a fair and equitable  basis;  a
showing that had the original errors not occurred, the  probability
of his being selected for promotion would have been extremely high.
 We do not find these factors in this case.

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  issues  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 AFBCMR Docket  Number
BC-2006-02894 in Executive Session on 26 April 2007 and 9 May 2007,
under the provisions of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. Gregory A. Parker, Member
      Mr. James L. Sommer, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Aug 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPPO, dated 26 Oct 06, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 9 Nov 06.
    Exhibit E.  Letter, Applicant, dated 3 Dec 06.
    Exhibit F.  Letter, HQ AFPC/DPPPO, dated 7 Feb 07, w/atchs.
    Exhibit G.  Letter, HQ AFPC/JA, dated 19 Mar 07.
    Exhibit H.  Letter, SAF/MRBR, dated 23 Mar 07.
    Exhibit I.  Letter, Applicant, dated 28 Apr 07, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair