ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-01427

		COUNSEL:  NONE
		HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be directly promoted to the grade of colonel, with an 
appropriate Date of Rank (DOR), as if originally selected by the 
Calendar 1993A (CY93A) Colonel Central Selection Board (CSB), 
with Senate confirmation.

2.  He receive all back pay and allowances as an active duty 
colonel up until his permanent disability retirement date of 
22 Jul 97.

3.  His military retirement pay be adjusted based on his 
retirement grade of colonel starting from his permanent 
disability retirement date of 22 Jul 97 to the present.

4.  His Officer Effectiveness Report (OER) rendered for the 
period 14 Mar 83 – 16 Feb 84 be amended to read the following:

		Block II, Job Description, 1. Duty Title as In-
residence Intermediate Service School (ISS): AFSC (S1455) or 
ACSC.

		Block IV, Assignment Recommendation: 4, Timing: 
1984/1985.

________________________________________________________________

STATEMENT OF FACTS:

On 24 Sep 99, the applicant was permanently retired in the grade 
of lieutenant colonel with a compensable disability rating of 
30 percent, based on avascular necrosis of the left hip and 
status post left total hip arthroplasty.  He was credited with 
24 years, 10 months, and 2 days of active service.

On 13 Mar 06, the Board directed the following corrections to 
the applicant’s record:

	The AF Forms 77, Supplemental Evaluation Sheet, covering 
the periods 9 Nov 74 through 30 Apr 75 and 17 Feb 87 through 
1 Jan 88, be amended and he be considered by a Special Selection 
Board (SSB) for all boards for which the AF Forms 77 were a 
matter of record.

On 25 Sep 06, the applicant was considered and selected for 
Professional Military Education (PME) candidacy by SSB for the 
CY83 Intermediate Service School (ISS) PME Candidacy board; the 
applicant was also considered for PME candidacy by the 
CY87 Senior Service School (SSS) PME candidacy board, but not 
selected.

On Jan 10, a similar appeal was considered and partially 
approved by the Board and the applicant’s record was corrected 
to reflect the following:  

      The OER rendered for the period 14 Mar 83 through 16 Feb 
84, be amended in Section VI, Rater Comments, by deleting the 
last two sentences and adding the sentences "He is a major and 
PME selectee, recently selected to command a flight.  Continue 
to challenge, promote below the zone to lieutenant colonel, and 
send to Air Command and Staff College now!"; and in Section 
VIII, Indorser Comments, by deleting the last sentence and 
adding the sentences "Ready for Air Command and Staff College in 
residence now.  Promote early to lieutenant colonel and groom 
for command."  

      His record be considered for promotion to the grade of 
lieutenant colonel by a Special Selection Board (SSB) for the 
CY85 Below-the-Promotion Zone (BPZ) Lieutenant Colonel CSB, and 
any subsequent boards for which the OER closing 16 Feb 84 was a 
matter of record.

For an accounting of the facts and circumstances surrounding the 
applicant’s appeal, and, the rationale of the earlier decision 
by the Board, see the Record of Proceedings at Exhibit F.

On 15 Jun 10, the Executive Director of the AFBCMR advised the 
applicant that the Board’s decisional documents were forwarded 
to his counsel, on 2 Mar 10; however, because no response was 
received within 30 days and his application was considered by 
the Board based on the available evidence of record.  In 
addition, he noted, that since the Board had rendered a final 
decision on his case, unless he presented additional documentary 
evidence, his case would remain closed (Exhibit G).

By letter, dated 26 Jul 10, the applicant provided a response to 
the advisories; stating neither he or his attorney received 
copies of the Air Force evaluations and had the Board been 
provided the additional letters of support, with the recommended 
change to his OER closing 14 Feb 84, he believes the recommended 
change to the rater and additional rater comments would have 
rendered more positive results (Exhibit H).  

On 14 Sep 11, the Executive Director advised the applicant that 
the AFBCMR had received several letters and fielded numerous 
calls and emails, requesting the status of his case, with the 
submission of new documentation to be added to his application.  
The Executive Director reminded the applicant of the grounds for 
reopening a case for reconsideration and that his case remains 
closed until such evidence is submitted (Exhibit I).  

By letter, dated 27 Sep 11, the applicant stated that there 
appeared to be confusion with the handling of his case.  He 
attached previous correspondence from the AFBCMR staff; however, 
in this letter he requested reconsideration and submitted 
additional arguments to support his case (Exhibit J).

On 15 Nov 11, the applicant notes his disappointment in the 
handling of his reconsideration request and requested a status 
of his case (Exhibit K).

On 21 Nov 11, the applicant submitted a DD Form 149, which was 
essentially a request for reconsideration, contending that based 
on the Board granting partial relief, and the inaccuracy of the 
contested report, he should be granted a direct promotion to the 
grade of colonel, with an appropriate DOR for the CY93A Colonel 
CSB, with all back pay and allowances.  

Additionally, he believes that his corrected record of 
performance should be considered by an SSB for selection to 
attend in-residence PME, specifically, to attend Intermediate 
Service School (ISS) for the selection boards that met in 
(84,85,86, and 87).  He notes that he was advised by the Air 
Force Personnel Center (AFPC) that they do not have the archive 
records or the promotion board data to conduct the SSBs to 
consider him for ISS in-residence PME as directed by the Board.  
Therefore, the Air Force cannot provide him full, fitting, 
equitable and complete relief because of their inability to 
conduct appropriate SSBs. 

He believes the evidence he provides in support of his candidacy 
for ISS and the supporting documentation from his former chain 
of command warrants consideration for a direct promotion to the 
grade of colonel.  

In support of his appeal, the applicant provides copies of his 
previous directive; retirement orders; extracts from his service 
medical records; his DVA medical records, and other supporting 
documents.  

The applicant’s complete submission, with attachments, is at 
Exhibit L.  

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPAPF did not provide a recommendation; however, they noted 
that because there is no Air Force Instruction (AFI) provision 
for an SSB for selection to ISS, and due to the non-existence of 
the corresponding applicable records in question, they have no 
further remedy available to the applicant with respect to in-
residence developmental education.

In addition, DPAPF noted that after thoroughly reviewing the 
actions taken by the AFBCMR, to include scrutiny of the rule 
sets and logic utilized, concluded that the applicant was 
provided a fair remedy to his record with the correction of his 
OER to reflect ISS candidacy and revised statements by the 
supervisory chain.  They concur that it is not appropriate to 
update his record to reflect attendance at Air Command and Staff 
College (ACSC), when this indeed did not occur and for the 
reasons stated in the Board proceedings.  There is currently no 
AFI provision for supplemental consideration for designation to 
ISS.

The complete DPAPF evaluation is at Exhibit M.

AFPC/DPSIDEP recommends replacing the additional rater’s 
comments with the new comments provided.  In addition, they 
noted that in light of the applicant’s revised PME selectee 
status, the PME recommendation statement on the contested report 
remains inaccurate under the additional rater's block.  
Therefore, the applicant is now requesting that the information 
be administratively corrected and has submitted a statement with 
new proposed indorsements from the additional rater to reflect 
"Captain M. record of performance in the unit identifies him as 
a number one candidate and he is immediately available for 
selection to attend in-residence PME.  Recommend that he attend 
the Armed Forces Staff College or Air Command and Staff 
College.”

The complete DPSIDEP evaluation is at Exhibit N.

AFPC/PB did not provide a recommendation and deferred to DPAPF’s 
advisory.  They noted that during the time frame in question, 
officers who were selected as "candidates" by their central 
promotion board for possible in-residence attendance at ISS 
potentially went on to meet central "school designation" boards 
convened by DPAPF.  However, DPAPF states in their advisory that 
there is no AFI provision for supplemental consideration for 
school designation.

The complete PB evaluation, with attachments, is at Exhibit O.

AFPC/DPSOO recommends denial of the request for a direct 
promotion to the grade of colonel.  DPSOO states that to grant a 
direct promotion would be unfair to all other officers who have 
extremely competitive records and also did not get promoted.  
Should the Board approve the change to the OER, they recommend 
approval of an SSB for any promotion board where the OER was a 
matter of record.  They would also recommend that the applicant 
write a letter to the promotion boards to advise them of his ISS 
candidacy and that through no fault of his own, he was unable to 
attend in residence.  Further, they noted the applicant's case 
is not unique.  There have been many cases where an officer has 
gone through the SSB process to be relooked for candidacy, been 
selected, but unable to attend because they are already outside 
the window of eligibility to attend.  To grant resident credit 
to the applicant would be unfair to those officers who are in 
the same situation.  In addition, since 2005 CSBs have not been 
used to select officers for resident school.  If an officer is 
selected for school candidacy by an SSB, there would be no 
provisions to authorize an SSB for residency selection.

The DPSOO evaluation is at Exhibit P.

AFPC/JA recommends denial of the applicant’s request for 
reconsideration, noting that the applicant has failed to meet 
the prerequisites for reconsideration and that his case should 
be returned without action or denied on that basis.  

As pointed out in the Board’s letter, this submission by the 
applicant represents the latest in a line of applications and 
AFBCMR decisions going back to 1994.  As a result of the most 
recent, the Board ordered a correction to the applicant's OER 
closing 16 Feb 84, by amending the rater and indorser comments 
to add a recommendation to attend Air Command and Staff College 
(ACSC) in-residence, and by directing an SSB for the applicant's 
below-the-zone (BPZ) and subsequent boards for which the 
corrected OER was a matter of record.  The applicant's requests 
to be credited with in-residence attendance at ACSC and to be 
directly promoted to colonel were denied by the Board.  

In his letter of 22 Jul 10, which applicant styles as a request 
for reconsideration of the Board's 2 Mar 10 decision, the 
applicant offers two reasons in support of the request:

1)  neither he nor his (previous) attorney ever received the 
BCMR decision and were thus denied the opportunity to reply 
to/rebut the advisory opinions therein; 

2)  he desires to offer what he terms newly developed 
information in the form of letters from his additional rater on 
the contested 1983 - 1984 OER.  

JA considers the letter from the Board dated 15 Jun 10, to be 
dispositive of that issue.  In that letter, the AFBCMR Executive 
Director, stated that the advisory opinions were sent to the 
applicant's attorney in time to allow a response within the 
allotted time period.  No response was ever received; thus, the 
case remains closed unless the applicant was to provide 
additional documentary evidence in support of a request for 
reconsideration.  Further, the bulk of the applicant's 
22 Jul 10 request is devoted to comment and rehashed argument 
with respect to the advisories provided to the Board in 
conjunction with its Mar 10 decision, without the benefit of any 
new evidence in support thereof.  The law has made clear that 
"argument," defined as an effort to establish by a course of 
reasoning, is not evidence.  Similarly, "new or rehashed 
arguments do not constitute 'new evidence' as that term is used 
in the governing directives.  JA opines for this reason, with 
respect to that portion of his request, the applicant has failed 
to meet the requisite regulatory standard for reconsideration, 
and that portion of the request should therefore not be referred 
to the Board.

There are also serious questions whether the remainder of the 
reconsideration request meets the requisite criteria discussed 
above.  The letters from the former additional rater are dated 
25 Jul 08, almost two years before the Board's Mar 10 decision.  
It is difficult to understand why it took some two years after 
the letters were signed to finally submit them to the Board.  
Were they not reasonably available prior to the Board's 
decision?  JA suggests they were.  The assertion by applicant 
that he was waiting to submit them with a rebuttal to the 
2008 BCMR case advisories does not change the fact they were 
reasonably available for almost two years before the Board 
rendered its decision.  Nevertheless, they have no objection to 
changing the wording from that already approved by the Board to 
that now offered by the former additional rater.  They do not 
believe, however, that such a change constitutes a material 
change that warrants additional SSB consideration.  At most, it 
constitutes a minor grammatical correction.

Additionally, as noted in the DPAPF advisory, there is no 
process in place to "do over" an in-residence service school 
selection.  Even if there were, the passage of time has resulted 
in the destruction of records that would likely have been used.  
Notwithstanding, they do not believe the applicant has been 
unfairly prejudiced by the inability of the Air Force to now 
conduct a new consideration for in-residence service school.  
Moreover, even if the applicant were somehow now selected, he 
could not attend.  Therefore, they agree with DPAPF that under 
these circumstances it would constitute an undeserved windfall 
to give the applicant credit in his record for completing in-
residence service school that he never attended, let alone 
completed.  The AFBCMR obviously agreed with this conclusion in 
its Mar 10 Record of Proceedings and made it part of its 
decision.  Given that the Board in that decision had also 
granted the applicant a correction to his 1983-1984 OER by 
adding rater and additional rater recommendations for ACSC--
essentially the same request being made now with the tender of 
the retired colonel's letters-nothing in this reconsideration 
request warrants a change to that 2010 determination.  For the 
same reasons, it also does not warrant new SSB consideration.  
Finally, they agree with DPSOO that even if applicant had 
completed in-residence ISS, it would not have guaranteed 
promotion, as it constituted just one of multiple factors 
utilized in the whole person concept.

On a final note, the applicant was denied a direct promotion in 
the Mar 10 BCMR decision and the facts and circumstances 
supporting that decision have not changed.  Both then and now, 
the applicant has utterly failed to establish any basis for a 
direct promotion.

The complete JA evaluation is at Exhibit Q.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 11 Jul 12, the applicant requested an extension to provide a 
response to the Air Force evaluations and his case was again 
closed without prejudice.

On 8 Jan 13, the applicant responded.  In his rebuttal, the 
applicant provides additional evidence to support his appeal, 
including letters from senior officers who served on active duty 
during the period under review.  He believes the statements and 
experience of these senior officers would be extremely valuable 
to the Board’s deliberation on his case.  He states that the 
statements support his case and contends that:

      1.  If he had been properly identified as a candidate for 
selection to attend ISS in 1984, he would have been selected for 
in-residence ISS attendance.

      2.  At the completion of ISS, his Air Force career would 
have been significantly different and he would have been 
assigned to high visibility, career-enhancing positions that led 
to early promotions, in-residence Senior Service School (SSS), 
selected for key command positions, and possibly considered for 
promotion to general officer.

      3.  At a minimum, his original Colonel CSB would have 
selected him for promotion to colonel in 1993.

In addition, he amended his application as noted earlier in his 
request.

He disagrees with the JA advisory and has provides evidence that 
he believes meets the criteria for reconsideration, especially, 
in light of the Executive Director’s letter which extended that 
option to him.  Additionally, he provides statements from other 
senior officers of the significance of having being selected as 
a candidate for ISS and a subsequent selection to ISS would have 
had on his career and promotion potential.

DPSOO has provided no evidence that had he been selected as a 
candidate appropriately, he would not have been selected to 
attend ISS, and put his career on a significantly different path 
of progression.

The comments from DPSIDEP and their support of his request are 
noted; however, he believes in totality that his case is so 
unique that it can only be remedied by a direct promotion to the 
grade of colonel.

In further support of his appeal, the applicant provides copies 
of letters of support from his former rater, additional rater, 
and indorser; letters of support from several senior officers, 
and various other supporting documents.

The applicant’s complete response, with attachments is at 
Exhibit S.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  In an earlier finding, the Board determined that the 
applicant's OER should be amended in Sections VI and VIII and 
that he received SSB consideration for promotion to the grade of 
colonel.  On 25 Sep 06, the applicant was selected for PME 
candidacy by SSB for the CY83 ISS.  The Board also determined 
there was insufficient evidence to warrant changing his records 
to reflect that he was credited with in-residence attendance at 
ACSC or that he be directly promoted to the grade of colonel.  
The applicant is again requesting changes to his OER and that he 
be directly promoted to the grade of colonel with back pay and 
allowances.  As such, he believes this, coupled with the 
evidence from his former chain of command warrants consideration 
for a direct promotion to the grade of colonel.  However, after 
thoroughly reviewing the additional documentation submitted in 
support of his appeal and the evidence of record, we do not 
believe the applicant has overcome the rationale expressed in 
the previous Board's decision.  We note the Board has, on 
several occasions, found the applicant has received fair 
consideration for promotion through the SSB process.  Therefore, 
we find no basis upon which to circumvent the SSB process and 
direct his promotion to the grade of colonel.  While several Air 
Force Offices of Primary Responsibility (OPRs) recommend his 
records reflect ISS candidacy and the revised statements by his 
supervisory chain again be considered by an SSB, we disagree.  
As pointed-out by JA, given the Board previously granted the 
applicant a correction to his 1983-1984 OER by adding a rater 
and additional rater recommendations for ACSC--essentially the 
same request being made now, there is nothing in this 
reconsideration request that warrants a change to that 
2010 determination.  For the same reasons, it also does not 
warrant a new SSB consideration.  Further, we recognize that in 
all cases, we cannot make an officer completely whole and 
therefore, strive to provide substantial equity.  In this 
regard, we note the applicant has benefited greatly from the 
correction of records process.  As a result of several previous 
applications to this Board; an OER closing 1 Jan 88 was voided 
and he received SSB consideration by the CY92, CY93, and CY94 
Colonel Boards; his nonselections for promotion to the grade of 
colonel were declared void, and he received SSB consideration 
with a reaccomplished Promotion Recommendation Form (PRF) with a 
"Definitely Promote" recommendation; an OER closing 30 Apr 
75 was declared void and he again received SSB consideration for 
promotion to the grade of colonel, and AF Forms 77, Supplemental 
Evaluation Sheets, closing 30 Apr 75 and 1 Jan 88 were amended 
and he received SSB consideration; all in all he has been 
reconsidered for promotion to the grade of colonel on numerous 
occasions by an SSB.  Over the course of its adjudication of his 
requests for almost 20 years, the Board has gone to great 
lengths to ensure his records are correct in order to provide 
him fair and equitable consideration for promotion.  In view of 
this and noting the previous corrections to his records, we are 
not inclined to favorably consider his requests.  Therefore, we 
agree with the opinions and recommendations of JA and DPPPO and 
adopt their rationale as the bases for our conclusion the 
applicant has failed to sustain his burden that he has suffered 
an error or an injustice.  In the absence of evidence to the 
contrary, we find no basis to recommend granting the relief 
sought in this application.

2.  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 the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2008-01427 in Executive Session on 16 July 2013, under 
the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2008-01427 was considered:

    Exhibit F.  Record of Proceedings, dated 2 Mar 10, 
                w/atchs.  
    Exhibit G.  Letter, AFBCMR, dated 15 Jun 10, w/atchs.
    Exhibit H.  Letter, Applicant, dated 26 Jul 10, w/atchs.
    Exhibit I.  Letter, AFBMCR, dated 14 Sep 11, w/atchs.
    Exhibit J.  Letter, Applicant, dated 27 Sep 11, w/atchs.
    Exhibit K.  Letter, Applicant, dated 15 Nov 11, w/atchs.
    Exhibit L.  DD Form 149, dated 17 Nov 11, w/atchs.
    Exhibit M.  Letter, AFPC/DPAPF, dated 11 May 12.
    Exhibit N.  Letter, AFPC/DPSIDEP, dated 21 May 12, w/atchs.
    Exhibit O.  Letter, AFPC/PB, dated 1 Jun 12, w/atch.
    Exhibit P.  Letter, AFPC/DPSOO, dated 15 Jun 12.
    Exhibit Q.  Letter, AFPC/JA, dated 21 Jun 12.
    Exhibit R.  Letter, SAF/MRBR, dated 2 Jul 12.
    Exhibit S.  Letter, Applicant, dated 24 Dec 12.




                                   Panel Chair

3