RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-00066
                                             INDEX CODE:  131.01, 131.10
      XXXXXXXXXXXXXXXXX                 COUNSEL:  XXXXXXXXXXXXXXXX

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  8 July 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

Her non-selections to the grade of lieutenant colonel be  removed  from  her
records,  she  be  granted  a  Definitely  Promote  (DP)  on  her  Promotion
Recommendation Form (PRF) for the CY06A (13 March  2006)  (P0506A)  Non-Line
Lieutenant Colonel Central Selection Board (CSB), and that she  be  promoted
to the grade of lieutenant colonel with an effective  date  as  if  she  had
been selected and promoted by the P0506A Non-Line CSB.

As an alternative,  she  be  granted  a  “DP”  on  her  PRF  for  the  CY06A
Lieutenant Colonel Non-Line CSB, and her record be  referred  to  a  Special
Selection Board (SSB) for the CY06A Non-Line Lieutenant Colonel CSB.

As  a  further  alternative,  her  record  be  referred  to  a  Supplemental
Management Level Review (SMLR) for “DP”  consideration  and  include  her  1
February 2006 Officer Performance Report  (OPR)  and  the  contents  of  her
appeal case, that she be granted SSB consideration by  the  P0506A  Non-Line
CSB with the re-accomplished PRF reflecting a “DP” recommendation,  and,  if
selected for promotion, be promoted with the appropriate effective date  and
corresponding back pay and allowances.

________________________________________________________________

APPLICANT CONTENDS THAT:

Her senior rater (SR), a Marine Corps senior officer,  was  unfamiliar  with
Air Force PRF practices and used a phrase on her PRF that,  while  favorable
on its face, had the unintended effect of  placing  her  in  the  third  and
forth  quartile,  thereby  affecting  her  chances  for  a  “DP”   promotion
recommendation and, with it, promotion to lieutenant colonel.

Her most recent OPR, closing out on 1 February 2006,  and  a  corrected  PRF
were never seen by the Air Force Non-Line Management Level Review (MLR).

In support of her appeal, she has submitted, through counsel, a  copy  of  a
Brief  containing  Background,  Timeliness  and   Exhaustion,   Summary   of
Applicant’s Air Force Career, Errors and Injustices,  Relief  Requested,  28
exhibits,  a   Table   of   Authorities   (Cases,   Statutes,   Regulations,
Miscellaneous), and a Glossary.

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant is a judge advocate, currently  serving  on  active  duty  in  the
grade of major, and has  two  non-selections  to  the  grade  of  lieutenant
colonel by the CY06A (13 March 2006) (P0506A) and CY06C (28  November  2006)
(P0506C) Non-Line Lieutenant Colonel CSBs.

Applicant was stationed at  a  NATO  School  in  Germany  at  the  time  the
contested PRF was completed and her SR, a Marine Corps  Major  General,  was
in Virginia and not co-located with her.  Her SR did not have the  authority
to award her a “DP” outright, and her  records  were  competed  at  the  Air
Force Non-Line MLR.  The PRF which met the MLR contained  the  following  as
the “push” language in the last line: “One of the  finest  officers  I  have
seen in my career!  Brilliant scholar and diplomat.  SDE then MAJCOM  SJA.”,
and she was given a Promote (P) at the MLR.  She received a copy of the  PRF
on 12 March 2006, one day before the CSB was scheduled  to  start,  and  was
able to determine after some research  that  the  phrase  was  considered  a
lower tier recommendation  in  the  Air  Force  system.   She  was  able  to
determine that her SR’s intent was  to  make  her  competitive  and  he  was
unaware that the language used would be interpreted any other  way.   A  new
PRF was generated and provided to the CSB eight  hours  after  it  convened.
The new PRF contained a new “push” line that read “Top 10% of 27 O-4s  under
my command!   Brilliant  scholar  and  diplomat.   SDE  then  MAJCOM  SJA.”;
however,  it was not re-vetted at an MLR  and  consequently  maintained  the
same “P” recommendation as the original  PRF.   She  was  not  selected  for
promotion and, after learning of her non-selection, requested  and  received
a copy of her Officer Selection Record (OSR).   It  was  at  that  time  she
learned that her OPR that closed out on 1 February 2006 was not included  in
her records that met the CSB.

Applicant filed an appeal of her PRF  and  OPR  to  the  Evaluation  Reports
Appeal Board (ERAB).  One of the documents  submitted  was  a  revised  PRF,
signed by the same SR, with a push line of “Top 1% of JAGs  I’ve  commanded!
Brilliant attorney & diplomat.  SDE and tough SJA  job-Definitely  Promote!”
She requested an SMLR, an award of a “DP”, and an SSB where  her  OPR  which
closed out on 1 February 2006 and the newest PRF were a part of her OSR.

An SMLR was accomplished, but apparently not  in  compliance  with  AFI  36-
2401, paragraph A1.6.2.4.2, which states “If the  senior  rater  believes  a
“DP” rating would have been awarded under  aggregation  or  carry-over,  the
MLR president reviews the request, the circumstances surrounding the  error,
and its  impact  on  the  strength  of  the  applicant’s  record.   The  MLR
president, after a competitive review, determines if  the  corrected  record
would have been sufficiently strong to have earned a “DP”  at  the  original
MLR, and makes the appropriate  recommendation.”   The  response  from  AFPC
indicates the procedure used  did  not  inform  the  MLR  president  of  the
circumstances surrounding the error.  Additionally,  rather  than  have  the
MLR president do the competitive  review  and  make  a  recommendation,  the
review was done by a  panel  which  provides  a  “fresh  look”  and  “is  in
accordance with current AF instructions and policy.”

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial as the applicant was given  fair  consideration
for a “DP” recommendation and the process was conducted  within  AF  policy;
in fact, she was given additional consideration for  a  “DP”  recommendation
not normally afforded to other AF officers.

AFI 36-2406, paragraph 8.3.6.1 states “Section  IX  is  blank  on  PRFs  for
officers submitted by the MLR to the AF Non-Line MLR.  The AF  Non-Line  MLR
president  completes  section  IX  with  either  a  “DP”,  “P”,   or   “DNP”
recommendation.”  In applicant’s case, the Joint  Forces  Command  MLR  sent
her PRF forward to compete for a “DP”  recommendation  at  the  AF  Non-Line
MLR.  As such, her record  was  screened  to  ensure  updated  reports  were
available.  AFI 36-2406, paragraph  3.8.5,  specifically  states  “Completed
OPRs …on EAD personnel are due to the  MPF  no  later  than  30  days  after
closeout.”  In  applicant’s  case,  the  OPR  closed  out  1 February  2006,
received its final required signature on 9 March 2006,  and  the  USAF  Non-
Line MLR convened on 14 February 2006, which is within the  30  days  review
process; thus, her most recent OPR (closing out  1 February  2006)  was  not
required to be included in her record at the AF Non-Line MLR.   AFI  36-2406
further states “OPRs on EAD officers are due at HQ AFPC  and  to  MAJCOM  no
later  than  60  days  after  close-out.”   Applicant’s  OPR   closing   out
1 February 2006 was filed in her electronic record on 28 April  2006,  which
was within the 60 day window, and the Air  Force  cannot  require  a  rating
chain to submit the evaluation any  earlier  than  the  already  established
policy.

AFI 36-2406, paragraph 8.5 states, “A  PRF  is  considered  a  working  copy
until the start of the  CSB”  and  establishes  procedures  to  correct  any
information in the content of the PRF prior  to  the  CSB,  further  stating
that “All changes to PRFs should be completed NLT two  weeks  prior  to  the
CSB.  However, in  extreme  circumstances  and  on  a  case-by-case,  basis,
AFPC/DPPPEB will approve changes up to  one  day  prior  to  the  CSB.”   In
applicant’s case, AFPC was notified on  the  day  of  the  CSB  that  a  PRF
correction was requested by the SR.  This late request was  approved  as  an
exception to policy and forwarded to the CSB  for  consideration.   Although
she contends the PRF did not get re-consideration for  a  “DP”,  these  “DP”
recommendations are strictly controlled for lieutenant  colonels  and  below
and, as such,  are  considered  awarded  unless  a  “DP”  recommendation  is
removed from an individual officer.  In her case, there was  no  substantial
change to her  record  which  met  the  original  AF  Non-Line  MLR  and  no
additional “DPs” to award.  There were no “DP” recommendations allocated  to
her SR for her competitive category, and by referring her record to  the  AF
Non-Line  MLR  for  “DP”  recommendation  consideration,  her  SR  gave   up
promotion recommendation authority to  the  AF  Non-Line  MLR  but  retained
ownership on the content of the PRF which was changed at his request.

The applicant submitted an ERAB request on  8  August  2006,  requesting  an
SMLR to compete for a “DP” recommendation.   HQ  AFPC/DPPPE  serves  as  the
Management Level for the AF Non-Line MLRs and will secure  a  recommendation
from the MLR President.  Based on the change in the content of the  original
PRF, support from her SR, and IAW AFI 36-2401, paragraph  A1.6.3  under  the
heading of “…after meeting the SR’s requirement, forward the appeal to  AFPC
for processing,” an SMLR was convened on 19 September 2006.  Her record  was
aged (all documents  after  the  original  AF  Non-Line  MLR  convened  were
removed) to ensure the record was the same as when it met the original  MLR.
 Therefore, the  OPR  closing  out  1 February  2006  was  not  required  or
available prior to the original MLR which convened on 14 February  2006,  so
it was removed from her record.  As to her contention that the  original  AF
Non-Line MLR president did not review her record for a  “DP”  consideration,
the AF Non-Line MLR has not used the original  MLR  President  and/or  panel
members for SMLR consideration since its inception as  there  is  no  single
individual appointed as the AF Non-Line MLR president as you may find  in  a
“standard,” i.e. MAJCOM, management level.  The MLR  presidency  rotates  to
different senior leaders for each MLR event as determined by the  AF  Senior
Leader Management Office.  The use of a new AF Non-Line  MLR  President  and
panel members for each SMLR provides a review by fresh eyes.  The  new  SMLR
is equal to the original MLR panel membership and has the ability to  review
the record with the revised PRF, compare it  with  benchmark  “DP”  and  “P”
recommendation records from the original MLR, and establish order  of  merit
that determines the  applicant’s  promotion  recommendation.   There  is  no
reason to task the original MLR membership to do this review, and  doing  so
would not give applicants the fresh look that the current process  provides.
 The AF SSBs for CSBs also uses a  new  President  and  board  members,  not
those of the original board, and this is the standard  supplemental  process
used.

Applicant has contended that the MLR president for the SMLR was  unaware  of
the contents of her appeal case.  Since there was a content  change  in  the
PRF, her  owning  MLR  president  from  Joint  Forces  Command  is  the  MLR
president who must be aware of her appeal  in  order  to  determine  whether
they support the request to go forward with  replicating  the  original  MRL
process, and  this  support  must  be  obtained  prior  to  the  SMLR  being
convened.   Per  AFI  36-2401,  paragraph  A.1.6.1,  he  must  explain   and
substantiate any error in the processing  of  the  PRF  and  how  the  error
justifies the requested PRF change.  When a supplemental panel is  convened,
panel members  are  not  made  aware  of  the  person  seeking  supplemental
consideration.  This  protects  the  applicant  and  provides  them  a  fair
hearing without prejudice, and the SMLR was  conducted  in  accordance  with
current AFIs and policy.

MLRs and CSBs evaluate the entire officer  record  to  assess  whole  person
factors, to include  job  performance,  professional  qualities,  depth  and
breadth of experience, leadership, and academic  and  professional  military
education.  Furthermore, the promotion recommendation by the SR  is  exactly
that, a recommendation.  CSB members are empanelled as an  independent  body
to factor the SR’s recommendation into  their  assessment  of  an  officer’s
record.  If, in their collective evaluation, an officer  is  deemed  neither
best nor fully qualified for promotion, the officer  will  not  be  promoted
regardless of the SR’s recommendation.  While her PRF may not be worded  the
way she would like to describe her accomplishments or have the comments  she
prefers, the AF Non-Line MLR  and  CSB  had  her  entire  OSR  that  clearly
outlined her accomplishments since the day she came on active duty.

Finally, her contention that she would have been promoted is  based  on  the
opinion  of  the  others.   Competition   for   promotion   is   keen   and,
unfortunately, all eligibles cannot be  selected  because  of  Congressional
constraints.  The fact is for each promotion  board,  there  are  many  more
highly qualified officers competing for promotion than there are  promotions
available.  Consequently, non-selection does not  necessarily  indicate  the
applicant was not qualified or not deserving of promotion.  Rather,  in  the
board’s judgment, her  peers  demonstrated  greater  capability  to  perform
duties and assume the responsibilities of the next higher grade.

The AFPC/DPPPE evaluation is at Exhibit C.

AFPC/DPPPO recommends denial for SMLR consideration  as  the  applicant  was
given fair consideration for a DP recommendation, the process was  conducted
within AF policy, and they were  unable  to  substantiate  that  a  material
error or injustice existed in her P0506A OSR.  They  also  recommend  denial
of her request for direct promotion to the grade of lieutenant  colonel  and
SSB consideration by the P0506A CSB.

No relevant evidence has been presented to demonstrate the  existence  of  a
probable error or injustice.  The results of the P0506A board were based  on
a complete review of her entire record, assessing whole person factors  such
as  job  performance,  professional  qualities,   depth   and   breadth   of
experience,  leadership,  and  education.   Although  an  officer   may   be
qualified for promotion,  she  may  not  be  the  best  qualified  of  other
eligible officers competing for the limited number  of  promotion  vacancies
in the judgment of a selection board vested with discretionary authority  to
make such selections.  Furthermore, to grant a  direct  promotion  would  be
unfair to all other officers who have extremely competitive records but  did
not get promoted.

Additionally, both Congress and  DoD  have  made  clear  their  intent  that
errors ultimately affecting promotion should be resolved through the use  of
SSBs.  When many good  officers  are  competing  for  a  limited  number  of
promotions,  it  is  extremely  competitive.   Without  access  to  all  the
competing records and a  review  of  their  content,  they  believe  sending
approved cases to SSBs for remedy is the  fairest  and  best  practice.   In
this  case,  both  direct  promotion  and   SSB   consideration   would   be
inappropriate.  The OPR closing out on 1 February 2006 was filed in her  OSR
on 11 March 2006 and, as such, the CSB took  it  into  consideration  during
the promotion process.

The AFPC/DPPPO evaluation is at Exhibit D.

HQ USAF/JAA recommends applicant’s request for relief be  granted  in  part,
and that her records meet an SMLR and SSB, to include her OPR  which  closed
out 1 February 2006.  In  their  opinion,  applicant  has  demonstrated  the
existence of an error as well  as  facts  and  circumstances  supporting  an
injustice.   The  promotion  system,  when  properly  implemented,  is   the
appropriate means for an officer’s records to be reviewed, and there  is  no
need for the Board to substitute its own judgment for that of the  promotion
system and either award her an outright “DP” or order that she be promoted.

A correction board must determine “whether the  applicant  has  demonstrated
the existence of  a  material  error  or  injustice  that  can  be  remedied
effectively through correction of the applicant’s military  record  and,  if
so, what corrections are needed to provide full and effective  relief.”   10
USC, Section 1552, does not limit the kind of  military  record  subject  to
correction by a correction board; hence a  correction  board  may  entertain
any kind of application for correction, to  include  amending  records  that
include OPRs and passover decisions by selection boards or SSBs.

The fundamental rule is that documents that are sent to  a  selection  board
must be “substantially  complete  and  must  fairly  portray  the  officer’s
record.”  If an officer’s record contains prejudicial information, or  lacks
pertinent documentation that may have mitigated the adverse  impact  of  the
prejudicial information, the record is not complete  and  the  law  requires
that another selection board be presented with a substantially complete  and
fair record.  When a correction board determines that the initial  selection
board’s  decision  did  contain  “material  error  of   fact   or   material
administrative error,” the proper course is  for  the  board  to  refer  the
corrected record to an SSB for a determination  whether  the  officer  would
have been promoted had  the  initial  selection  board  had  access  to  the
corrected records before it.

The law is very clear on the initial premise that an agency is bound by  its
own regulations.  Additionally, they  find  the  language  in  AFI  36-2401,
paragraph 1.5.1, troublesome.  In addressing stratification statements,  the
guidance states that “requests to add  optional  statements  (such  as  PME,
job/command “push”  recommendation,  or  stratification)  to  an  evaluation
report or PRF will normally not form the basis for a successful appeal.   As
those statements are not mandatory for inclusion, their  omission  does  not
make the report inaccurate.  You must  prove  the  report  is  erroneous  or
unjust based on its content.”  The current  guidance  on  the  AFPC  website
indicates there are “four tenets of effective  officer  selection  records.”
One of the  four  is  stratification,  and  the  specific  language  on  the
stratification slide  states  “Most  powerful  tool–particularly  among  “P”
records.”

They disagree with the AFPC/DPPPE opinion that the  procedures  followed  in
this case are compliant with current AFIs and policy.  While the  procedures
may have provided a “fresh look”, they did not comply with the  language  in
the AFI.  Additionally, they do not believe that the current  guidance  with
regard to stratification is consistent with the weight  it  is  given  under
the current procedures.

The HQ USAF/JAA evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded  to  the  applicant  on  1
June 2007, for review and  comment,  within  30 days.   Applicant  responded
through counsel on 27 June 2007.

Applicant’s counsel pointed out that the  AFPC/DPPP  Advisory  opinions  are
refuted by the Administrative Law Division opinion.  They  allege  that  she
has demonstrated that the OSR was  incomplete  and  that  the  PRF  language
generated by her uninformed SR clearly  had  an  unintentional  result.   As
such, the selection board was not  accurately  informed,  resulting  in  the
decision makers not having complete information on which to  act.   Contrary
to all advice, including that of AFPC/SJA, the opinion of the rating  chains
involved, the applicant, and even  HQ  USAF/  JAA,  AFPC/DPPP  continues  to
insist she has suffered no prejudice  whatever  in  the  promotion  process.
Their approach is highly concerning because it suggests  that  the  AFBCMR’s
process is a resource-allocation exercise rather than an effort to  identify
and  remedy  errors.   It  is  a  source  of  comfort  to   see   that   the
Administrative Law Division of the Office of the Advocate  General  did  not
embrace DPPP’s approach, and that their advisory opinion fully supports  the
relief she seeks.  Quite simply, an  error  was  made,  and  the  error  has
resulted in an injustice.

Applicant has  waited  nearly  a  year  and  a  half  for  relief  from  the
administrative nightmare of the promotion process gone awry, and  two  wrong
MLRs and one wrong CSB do not make a right.  Her career skidded  to  a  halt
16 months ago, as  evidenced  by  the  fact  she  has  already  been  denied
advancement in positions within her current assignment due to  non-selection
by the March 2006 board.  Her ability to serve in the  grade  of  lieutenant
colonel has been fully documented, and the command  and  supervisor  support
in her case is overwhelming  and  unanimous.   The  only  real  mistake  she
committed in her career was to accept the challenge of the  TJAG-hand-picked
assignment to a unique, joint and combined environment at an  isolated  NATO
post – an assignment for which she was three years junior  to  her  peers  –
and  thus  becoming  subject  to  the  systemic  problems  of  an  isolated,
uninformed rater  from  another  military  service  during  the  in-the-zone
promotion process.

They allege the only equitable outcome in this case is for applicant  to  be
immediately promoted to the rank of lieutenant colonel, and  point  out  the
lost advancement opportunities  within  her  current  assignment,  the  lost
opportunity to enroll in, let alone compete for,  an  in-residence  slot  at
the Air War College, the  fact  that  she  cannot  competitively  apply  for
selection at other educational or competitive  programs,  has  already  been
working in a lieutenant colonel’s billet for four years, has had  to  suffer
the indignity of  another  non-selection  at  the  above-the-zone  promotion
board and that it is clear that for JAG officers, promotion  occurs  at  the
in-the-zone board or not at all, and that she has  promptly  and  diligently
pursued relief (in comparison, it took AFPC no  less  than  five  months  to
respond  to  her  January  2007  application  after  exhausting  all  agency
remedies).  This is not a nasty case of personality conflict or yet  another
instance of  unsatisfactory  performance.   Her  entire  chain  of  command,
including her past and present attorney supervisors,  not  only  unanimously
concur with her appeal, but also believe she has fulfilled the  requirements
for service in the higher grade, and a review of her assignments and  career
progression shows she has performed extraordinarily  in  billets  above  her
current time and grade.  The advisory opinion from  HQ  USAF/JAA  recognized
what occurred here, concluding that the  procedures  followed  in  her  case
were not compliant with current AFIs and policy.  They not only  noted  that
AFPC failed to follow the existing regulations applicable to her  case,  but
additionally noted that AFPC’s current stratification guidance  in  the  AFI
is inconsistent with the weight it is given under current  procedures.   JAA
agreed that she has demonstrated the existence of an error as well as  facts
and circumstances supporting an injustice.  For these reasons,  and  because
of clear evidence of career injury, she should be directly promoted  to  the
grade of lieutenant colonel, which will at  long  last  restore  equity  and
justice to a process that has lacked those elements for well over a year.

As an alternative, granting applicant a “DP” PRF and  referring  her  record
to an SSB would at  least  significantly  reduce  the  amount  of  delay  in
processing this case by alleviating the need to conduct yet another  (third)
MLR.  There comes a point, after a year and a half of struggle, after  which
she should not have to endure further harm to her career  prospects.   Given
the multiple errors and injustices committed on the original MLR,  CSB,  and
the Supplemental MLR, an equitable solution is to grant immediate relief  by
at least awarding a “DP” on her PRF.

At a very minimum, the AFBCMR should direct AFPC  to  include  the  February
2006 OPR, revised PRF, and complete contents of her  AFBCMR  appeal  in  the
SMLR, direct AFPC to make the SMLR consist of the MLR President  and  not  a
panel, and direct her record to an SSB.  They would  further  ask  that  the
AFBCMR set a strict time limit in which to have the SMLR and  SSB  completed
so that she does not suffer yet more prejudice  in  her  current  assignment
and future options.

For the reasons stated above,  applicant  should  be  directly  promoted  to
lieutenant colonel.  Such a remedy, if promptly directed and effected,  will
begin to right the wrongs and will place her in the  position  she  deserves
to be in, in keeping  with  the  overwhelming  evidence  of  her  character,
experience, and accomplishments as an Air Force officer.  If the  AFBCMR  is
not disposed to recommend direct promotion to lieutenant colonel,  applicant
requests full consideration of the alternatives suggested above,  which,  to
a lesser degree, will also serve to address the errors in process.

Applicant’s complete response is at Exhibit G.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

On  17  October  2007,  HQ  USAF/JAA  advised  the  Board  that   they   had
reconsidered their 22 May 2007 advisory (Exhibit E) and  now  conclude  that
the applicant was afforded fair consideration  for  a  “DP”  recommendation,
that the process was conducted in accordance with Air Force  policy  and  in
the same manner as it applies to others similarly  situated,  and  that  the
applicant did not suffer an error or injustice.

The SMLR, which convened on 19 September  2006  to  review  the  applicant’s
case, complied with the  procedures  set  out  in  AFI  36-2401,  Correcting
Officer and Enlisted  Evaluation  Reports.   In  accordance  with  paragraph
A1.6.2.4.2, the Joint Forces MLR president completed  a  competitive  review
of  the  applicant’s  record  (to  include  reviewing   the   request,   the
circumstances surrounding the error, and its impact on the strength  of  the
applicant’s  record)  and  took  appropriate  action.   Appropriate   action
entailed following the  guidance  provided  in  paragraph  A1.6.3,  Changing
PRFs…for Officers in Competitive Categories  Other  Than  Line  of  the  Air
Force (the applicant’s case is subject to this provision as she is  a  judge
advocate;  this  processing  was  accurately  addressed  in  the  AFPC/DPPPE
advisory dated 20 April 2007, but not addressed in HQ USAF/JAA 22  May  2007
opinion) and forwarding her record to HQ AFPC/DPPPE for processing.

In its capacity as  the  Management  Level  for  the  applicant’s  case,  HQ
AFPC/DPPPE conducted a competitive review.  Based on  that  review,  the  HQ
AFPC MLR president, who was properly appointed in accordance  with  AFI  36-
2406, Officer and Enlisted Evaluation Systems, paragraph 8.3.6.4.2, to  make
a recommendation in the applicant’s  case,  determined  that  her  corrected
record was not sufficiently strong to earn a “DP”.  The  applicant  contends
that this review should have included her OPR closing out 1  February  2006,
and that the MLR president should have been made aware of the  circumstances
surrounding the appeal,  and  they  disagree.   According  to  AFI  36-2401,
paragraph A1.6.2.4, the MLR president “must, as much as possible,  replicate
the original competitive process.”  The OPR was properly excluded  from  the
applicant’s original competitive process  because  the  OPR  closeout  date,
signatures,  and  filing  date  did  not  meet  the  AFI  36-2406-prescribed
thresholds for inclusion.  Therefore, to replicate the original  competitive
process as much as  possible,  it  was  properly  excluded  from  the  SMLR.
Further, the requirement that  the  MLR  president  be  made  aware  of  the
circumstances  surrounding  the  appeal  applied  to  the  lower-level   MLR
president (in this case, the Joint Forces Command MLR  president),  not  the
MLR president at  this  level.   The  lower-level  review  requirements  are
outlined in AFI  36-2401,  paragraph  A1.6.2.4.2;  the  higher-level  review
requirements are outline in paragraph A1.6.3.

As a result of  this  review,  the  president  recommended  the  applicant’s
corrected PRF maintain the same “P”  recommendation  as  her  original  PRF.
Since Block IX of her PRF was still a  “P”  and  the  OPR  in  question  was
properly excluded, none of the conditions detailed in AFI  36-2501,  Officer
Promotions and Selective Continuations, which trigger an  SSB  were  present
here.

The applicant was properly, fully, and fairly considered by the  same  rules
applicable  to  others  similarly  situated.   Therefore,  an  SSB  was  not
warranted in this case, and the applicant has suffered neither an  error  or
injustice.  Moreover, to afford her an SSB -- or a direct promotion  as  she
requests —- would  give  her  special  treatment  not  available  to  others
similarly situated.  Accordingly, they withdraw the recommendation in  their
earlier opinion that the applicant be provided a second  MLR  and  SSB,  and
substitute this opinion for their previous opinion in this case.

The revised HQ USAF/JAA evaluation is at Exhibit H.

________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION

The applicant responded on 29 October  2007,  stating  that  the  additional
advisory was prejudicially late, factually incorrect, and legally flawed.

She states that HQ USAF/JAA has given  no  rationale  as  to  what  prompted
their sudden reversal in opinion.  The original JAA  opinion  was  a  candid
exposure of AFPC’s flaws in the overall guidance  issued  to  senior  raters
regarding stratification and impact of PRFs,  and  enumerated  clear  errors
and injustices in the processing of her particular records.  A critical  eye
should question why the issuance of the JAA  reversal  opinion  was  delayed
five whole months from the date of the original  opinion.   The  latest  JAA
opinion appears to be none other than a thinly  veiled,  last-ditch  attempt
by AFPC to indirectly influence the Board decision  through  the  weight  of
JAA’s advisory, as the prospect of a favorable BCMR  decision  on  her  case
would likely be perceived by AFPC to have an unacceptable,  systemic  impact
on the promotion system.  She points out that the agency  took  five  months
to submit advisories, that she and her counsel responded to  the  advisories
within the 30 days allotted, and that it is patently  unfair  to  allow  the
agency to change advisory opinions last-minute,  particularly  without  good
reason.  There is absolutely nothing  presented  in  the  new  JAA  advisory
opinion that could not have been stated five months ago, the  procedure  and
time deadlines provided in the appellate process have been grossly  breached
by JAA’s submission, and her case should not be prejudiced by allowing  this
railroad tactic to prevail.

The applicant states that the initial JAA  opinion  addressed  each  concern
raised in her application,  and  the  duly  appointed  JAA  attorney  did  a
thorough,  reasoned  analysis  in  reaching  the  agency’s  conclusion.   In
contrast, the revised JAA opinion only addresses one  issue  as  dispositive
of her whole case -- the process AFPC utilized in  conducting  the  SMLR  in
2006   The legal analysis now offered by  JAA  is  incomplete  and  severely
flawed in many aspects,  and  she  points  out  numerous  examples  of  this
alleged incomplete and flawed analysis.

The applicant appeals that the Board remedy this extraordinary case  with  a
direct promotion.  She states that the overall  handling  of  this  case  by
AFPC official offends basic, professional sensibilities, and that AFPC,  and
now JAA, have taken inordinate delays in processing  this  appeal  from  the
outset and will continue to do so if her records are returned  to  them  for
further action.  For one year and eight months, she has watched  her  career
flounder from the sidelines while her peers fly on past, and if this  appeal
and the events that have transpired in this case –- an improperly  conducted
SMLR, unexplained denial of an SSB by the ERAB, five months wasted for  AFPC
to submit a cursory response, and now a post-Board bizarre change of  advice
more than five months later  –-  don’t  merit  direct  promotion,  one  must
wonder what circumstances ever  would.   The  extraordinary  event  of  last
minute legal subversion has shocked those watching this case, and if  it  is
decided that her records should be competed again, the records will go  back
for processing to the very same agency  that  has  continuously  thwarted  a
fair  competition,  and  the  latest  events  are  probably  an  unfortunate
indication of how her record is likely to be received if  returned  to  AFPC
for supplemental action.  AFPC could, under  the  instructions,  justifiably
delay an SMLR or SSB consideration for a year beyond the additional year  it
will take to actually receive notice and approval of  a  favorable  outcome,
and, even with a positive outlook, it will be well over three  years  before
resolution of her future prospects in the Air Force.

The applicant’s complete response is at Exhibit I.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of  probable  error  or  injustice  to  warrant  that  applicant’s
records, to include her  OPR  which  closed-out  1 February  2006,  and  the
corrected PRF considered by the previous  SMLR,  be  considered  by  another
SMLR for the CY06A (P0506A) Non-Line Lieutenant Colonel CSB.  Applicant  has
demonstrated that her OSR that was considered by  the  CY06A  (P0506A)  Non-
Line Lieutenant Colonel CSB was  incomplete,  and  that  the  PRF  that  was
competed for a “DP” at the MLR for that Board, and  which  was  subsequently
considered by that Board, contained language generated by her uninformed  SR
which clearly had an unintentional result.  The  fundamental  rule  is  that
documents that are sent to a selection board must be substantially  complete
and must fairly portray  the  officer’s  record.   If  an  officer’s  record
contains prejudicial information, or lacks pertinent documentation that  may
have mitigated the  adverse  impact  of  the  prejudicial  information,  the
record is not complete and the law requires that another selection board  be
presented  with  a  substantially  complete  and  fair   record.    In   the
applicant’s case, although the OPR closed-out prior to the convening of  the
AF Non-Line MLR, it was not required to be filed in her records until  after
the  MLR  had  convened.   However,  applicant  has  provided  documentation
demonstrating that her chain of command fully intended for the OPR to  be  a
matter of record before the MLR, but was not completed  in  time  due  to  a
series of administrative errors and delays, caused, in part,  by  her  being
geographically separated at a remote NATO School in Germany and  her  rating
officials  being  located  at  separate  locations  in  Virginia.   In  this
respect, we note the rater has provided a statement indicating the  original
OPR was prepared in a timely  manner  and  submitted  to  the  Joint  Forces
Command in order to meet the MLR, but was  returned  for  minor  correction.
The rater further states the Air Force colonel that coordinated on  all  Air
Force personnel actions was out of the office for  an  extended  period  and
that as such, the package was not coordinated  under  the  routine  process.
In view of the statement from the applicant’s rater, and  in  an  effort  to
provide her the  maximum relief  within  the  system,  we  believe  the  OPR
should be a matter of record before the SMLR when the determination is  made
as to what overall promotion recommendation she should have received on  the
PRF prepared for the CY06A CSB.  Therefore,  we  recommend  her  records  be
corrected to the extent indicated below.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of either an error or injustice to  warrant  favorable  action  on
the remainder of the  applicant’s  requests.   The  promotion  system,  when
properly implemented, is the appropriate means for an officer’s  records  to
be reviewed, and there is no need for  this  Board  to  substitute  its  own
judgment for that of the promotion system and either award her  an  outright
“DP” or order that she be promoted.  In this respect, 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.  In addition,  they  may  be  qualified  but  –  in  the
judgment of 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.   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  the  officer  exercised  due  diligence  in  pursuing
timely and effective relief; and lastly, that had the  original  errors  not
occurred, the probability of his/her  being  selected  for  promotion  would
have been extremely high.  We do not find these factors in  this  case.   It
appears the SMLR process was conducted in accordance with Air  Force  policy
and the applicant has not shown that she has been  treated  any  differently
than others who are similarly situated.  In view of the  foregoing,  and  in
the absence of evidence to the contrary, we  find  no  compelling  basis  to
recommend granting this portion of her application.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

            a.  The Officer Performance Report (OPR), AF IMT 707A,  rendered
for the period 9 April 2005 through 1 February 2006, be amended  to  reflect
that it was signed by the rater in Section VI on 7  February  2006,  by  the
additional rater in Section VII on 7 February 2006, and  by  the  Air  Force
Advisor in Section IX on 9 February 2006.

            b.  The OPR  rendered  for  the  period  9  April  2005  through
1 February 2006 was accepted for file in her Officer Selection Record  (OSR)
on 11 February 2006.

            c.   The  Promotion  Recommendation  Form  (PRF),  AF  IMT  709,
prepared for the Calendar Year 2006A (CY06A)  (P0506A)  Non-Line  Lieutenant
Colonel Central Selection Board  (CSB)  and  reflecting  the  last  line  in
Section IV, Promotion  Recommendation,  “Top  1%  of  JAGs  I’ve  commanded!
Brilliant  attorney  &  diplomat.   SDE  and  tough  SJA  job  -  Definitely
Promote!” be amended in Section IX, Overall Recommendation,  to  reflect  no
overall recommendation.

            d.  Her record, to include the above corrected OPR and  PRF,  be
considered by a Supplemental Management Level Review (SMLR)  for  the  CY06A
(P0506A) Non-Line Lieutenant Colonel CSB, with  the  original  President  of
the  Non-Line  SMLR  for  the  CY06A  Non-Line   Lieutenant   Colonel   CSB,
competitively reviewing her record, the circumstances  surround  the  error,
its impact  on  the  strength  of  her  record,  and  rendering  an  overall
recommendation.

It is further recommended that her record, to include  the  above  corrected
OPR and the PRF containing the overall recommendation she received from  the
above  referenced  SMLR,  be  considered  for  promotion  to  the  grade  of
lieutenant colonel by a Special Selection Board for the CY06A (P0506A)  Non-
Line Lieutenant Colonel CSB.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-01937
in Executive Session on 30 August  2007  and  15 November  2007,  under  the
provisions of AFI 36-2603:

                       Mr. Jay H. Jordan, Panel Chair
                       Mr. James L. Sommer, Member
                       Mr. Steven A. Cantrell, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Dec 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPE, dated 20 Apr 07.
    Exhibit D.  Letter, AFPC/DPPPO, dated 23 Apr 07.
    Exhibit E.  Letter, USAF/JAA, dated 22 May 07, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated, dated 1 Jun 07.
    Exhibit G.  Letter, Counsel, dated 27 Jun 07.
    Exhibit H.  Letter, USAF/JAA, dated 17 Oct 07.
    Exhibit I.  Letter, Applicant, dated 29 Oct 07.




                                   JAY H. JORDAN
                                   Panel Chair




AFBCMR 2007-00066




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 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that:

            a.   The Officer Performance Report (OPR), AF IMT 707A,
rendered for the period 9 April 2005 through 1 February 2006, be, and
hereby is, amended to reflect that it was signed by the rater in Section VI
on 7 February 2006, by the additional rater in Section VII on 7 February
2006, and by the Air Force Advisor in Section IX on 9 February 2006.

            b.   The OPR rendered for the period 9 April 2005 through
1 February 2006 was accepted for file in her Officer Selection Record (OSR)
on 11 February 2006.

            c.   The Promotion Recommendation Form (PRF), AF IMT 709,
prepared for the Calendar Year 2006A (P0506A) Non-Line Lieutenant Colonel
Central Selection Board (CSB) and reflecting the last line in Section IV,
Promotion Recommendation, “Top 1% of JAGs I’ve commanded!  Brilliant
attorney & diplomat.  SDE and tough SJA job - Definitely Promote!” be, and
hereby is, amended in Section IX, Overall Recommendation, to reflect no
overall recommendation.

            d.   Her record, to include the above corrected OPR and PRF, be
considered by a Supplemental Management Level Review (SMLR) for the
Calendar Year 2006A (P0506A) Non-Line Lieutenant Colonel CSB.


It is further directed that her record, to include the above corrected OPR
and the PRF containing the overall recommendation she received from the
above referenced SMLR, be considered for promotion to the grade of
lieutenant colonel by a Special Selection Board for the Calendar Year 2006A
(P0506A) Non-Line Lieutenant Colonel CSB.












  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency