RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-03514
                             INDEX CODE:  111.01
      XXXXXXX                    COUNSEL:  GUY J. FERRANTE
                                 HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered by a Special Selection Board (SSB)  for  promotion  to  the
grade of lieutenant  colonel  (Lt  Col)  by  the  CY99B  Lieutenant  Colonel
Central Selection Board (CSB).

________________________________________________________________

APPLICANT CONTENDS THAT:

The CY99B CSB was unconstitutionally conducted.  The  courts  have  recently
had several occasions to review and analyze instructions given to  Army  and
Air Force competitive boards that urge special consideration for female  and
minority candidates at the  expense  of  white  male  candidates.   In  each
instance, either the  court  found  that  the  instruction  failed  to  pass
constitutional muster or the  military  service  declined  to  litigate  the
issue.  If he is reconsidered for promotion he should compete  with  a  full
and complete personnel record.  Unfortunately,  his  record  was  incomplete
when considered by the promotion  board  in  1999  in  that  it  lacked  the
citation to accompany the  Meritorious  Service  Medal  (MSM)  that  he  was
awarded in 1995.  While the award of the medal was reflected on his  Officer
Selection  Brief  (OSB),  there  was  no  description  of  the  "distinctive
accomplishments" upon which it was based.  Nor was it readily apparent  from
the OSB that the award was earned while he was still serving as  a  captain.
This was the highest decoration that he  had  received  prior  to  the  1999
promotion board.  Most importantly,  the  citation  covered  the  period  of
February 1993 through September 1995 and singularly  lauded  his  invaluable
contributions to the Tri-Service Standoff Attack  Missile  Program  (TSSAM).
The Officer Performance Report (OPR) rendered  during  that  span  contained
scant mention of those contributions.  This was because  the  TSSAM  program
was shrouded in secrecy for much of the time.   By  the  time  his  MSM  was
awarded, the Air Force had acknowledged the program so  the  citation  could
include more of the details, and his participation  in  it.   As  a  result,
this is not a case where information was available from  other  sources;  it
is a case where omission of the citation left a hole in the promotion  board
member's perception of the applicant's  overall  performance.   Clearly,  he
was denied fair, equitable, and  accurate  promotion  consideration  if  his
record was evaluated without the benefit of this noteworthy citation.
In support of his request, applicant provided his counsel’s brief,  the  MSM
citation and copies of performance  reports  rendered  between  17  December
1992 and 4 January 1996.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was commissioned in the Regular Air Force on  20 October  1984
and was progressively promoted to the grade of  major  having  assumed  that
grade effective and with date of rank of 1 June 1996.

The applicant was considered but not selected for  promotion  by  the  CY99B
Lieutenant Colonel CSB which convened on 30 November 1999.

He retired from the Air Force 31 October 2004, after serving  20  years  and
11 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial.  DPSOO states the  applicant  through  counsel
contends  that   the   board   instructions   contained   an   illegal   and
constitutionally impermissible instruction that  gave  unfair  advantage  to
women and minorities (Berkley, et al., v United States, United States  Court
of Appeals for the Federal Circuit, Docket Number  01-5057).   Beginning  in
1998, the verbiage for the memorandum of instructions  provided  to  central
selection boards and special selection boards  was  changed  to  delete  the
cited instruction.  Therefore, the applicant's request does not  fall  under
the Berkley decision.  The applicant contends his MSM citation  was  missing
from his Officer Selection Record (OSR); however, he does  not  provide  any
documentation showing what action he took to ensure it was filed in his  OSR
prior to the convening of the  CY99B  board.   Since  it  is  the  officer's
responsibility to ensure the accuracy of his  record,  DPSOO  believes  that
had he checked his OSR prior to the board he would have noticed the  missing
citation and taken corrective action at that time.   Although  the  citation
was not on file in his OSR when the board convened, the board  members  knew
of its existence as evidenced by the  entry  on  his  OSB.   Therefore,  the
board was knowledgeable the decoration was  awarded  to  the  applicant  and
factored into the promotion  selection  process.   As  such,  DPSOO  is  not
convinced the absence of the citation contributed to his  non-selection  for
promotion.  The applicant has not provided any proof that his  consideration
was contrary to law.  In addition, he  has  not  demonstrated  he  exercised
reasonable diligence in maintaining his record.  As such,  DPSOO  stands  by
AFI 36-2501, paragraph 6.3.3., which states “do  not  have  an  SSB  if,  by
exercising reasonable diligence, the  officer  should  have  discovered  the
error or omission  and  could  have  taking  corrective  action  before  the
originally scheduled board convened.”

The complete DPSOO evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded stating DPSOO  offers  no  support  whatsoever  for  their
claim that this  case  falls  outside  the  Berkley  precedent  because  the
memorandum of instructions given to selection boards was changed before  his
1999 consideration.  Moreover, this makes no sense  since  Berkley  was  not
even decided by the Court of Federal claims until the year 2000 and the  Air
Force prevailed at that level.  Not until 2002  did  the  Court  of  Appeals
reverse that favorable ruling.  It  is  inconceivable  that  the  Air  Force
would have taken action publicly  acknowledging  error  (deleting  offensive
language) while maintaining in federal  court  that  the  language  was  not
offensive at all.  There are several things  wrong  with  DPSOO's  position.
First the applicant did check  the  accuracy  of  his  records  on  file  at
Barksdale Air Force Base, and the MSM citation was there.   Only  after  his
non-selection  did  he  discover  that  his  records  were  apparently   not
maintained as accurately  at  Randolph  Air  Force  Base  as  they  were  at
Barksdale.  The regulation does not require absolute or  perfect  diligence;
it contemplates "reasonable diligence."  And  it  was  eminently  reasonable
for him to confirm the accuracy of his local records and  then  assume  that
the official ones were just as accurate.  Secondly, the MSM was  awarded  in
1995.  The board discrepancy report found  in  his  record  after  his  non-
selection was generated in 1999, just days before the  promotion  board  for
his in-promotion-zone (IPZ) consideration.  But there is no  similar  report
documenting any discrepancies  prior  to  his  earlier  below-promotion-zone
(BPZ) promotion consideration.  This sequence of events  can  lead  to  only
two conclusions.  The first is that the Air Force  professionals  themselves
did not notice the discrepancy before  the  BPZ  board,  and  it  cannot  be
unreasonable for him to be as diligent as them.  The second  possibility  is
that the MSM citation was in his records before the BPZ board but then  lost
or misplaced some  time  before  the  IPZ  board.   In  this  case,  it  was
inconceivable for him to take leave, travel  to  Randolph  Air  Force  Base,
personally inspect his master file, and find a MSM citation there, only  for
it to go missing later.  Form should not  prevail  over  substance,  and  he
should not  be  penalized  for  the  "reasonable  diligence"  he  exercised.
Third, DPSOO's position would wreak havoc with  this  Board's  jurisdiction.
By statue, he had three years from discovery of error or injustice to  apply
for relief.  DPSOO concedes that his application is timely,  so  this  Board
is obligated to consider it.  But DPSOO urges that it  not  because  he  did
act sooner.  This would render the statutory  time  limitation  meaningless.
He acted within the time specified by Congress  and  should  not  be  denied
deserved  relief  for  arbitrary  administrative  reasons.   Finally,  DPSOO
breaks out the boilerplate argument about the promotion board knowing  about
his MSM from its mention in his OSB, which was "good enough."   But  it  was
not "good enough"  in  this  case  because  noteworthy  information  in  the
missing   citation   was   not   available   elsewhere.    His    invaluable
contributions, while still  a  captain  with  the  TSSAM  program  were  not
mentioned in contemporary OPRs.  Nor does DPSOO address the  numerous  times
that this Board has granted relief in precisely the situation here.  It  was
erroneous for his records to be considered without the citation to his  1995
MSM, and he suffered an injustice as a result of that omission.   DPSOO  has
offered no compelling reasons  for  that  error  and  injustice  to  not  be
corrected at this time.

The complete response is attached at Exhibit D.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  Applicant is contending his  non-selection
was unjust because of a Memorandum of Instruction (MOI) containing an  equal
opportunity clause that was subsequently found  unconstitutional.   However,
the MOI in question affected boards  held  between  January  1990  and  June
1998.  The contested board convened on 30 November 1999, well after the  MOI
was no longer in use.  Therefore, the applicant's selection record  was  not
affected by its use.  Applicant is also contending that  the  citation  that
accompanied the MSM he was awarded in 1995 was missing  from  his  OSR.   We
carefully considered counsel's contentions regarding this  matter  including
his argument that by checking the accuracy  of  his  records  maintained  at
Barksdale AFB  he  exercised  reasonable  diligence;  however,  we  are  not
persuaded by his assertions that an error  or  injustice  exists  warranting
corrective action.  In this respect, the Air  Force  has  historically  made
considerable  effort  to  ensure  officers  are  aware  that  it  is   their
responsibility to ensure their OSRs are accurate prior to the  convening  of
selection  boards.   Information  was  provided  to  officers   along   with
preselection briefs and during the time period in  question  the  Air  Force
had implemented various mentoring programs for this  specific  purpose.   In
addition  to  the  authorization  of  permissive  TDY  for  the  purpose  of
reviewing selection records, eligible officers  are  also  apprised  of  the
option of reviewing their records over the phone with personnel at  HQ  AFPC
or requesting a copy of their OSR by fax or mail.  In view of the above,  we
are not persuaded  by  counsel's  argument  that  reasonable  diligence  was
exercised  in  this  case.   Therefore,  we  agree  with  the  opinion   and
recommendation of the Air Force office of primary responsibility  and  adopt
its rationale as basis for our conclusion that the applicant has  failed  to
sustain his burden of proof of  the  existence  of  an  error  or  injustice
warranting corrective action.

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 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-2007-
03514 in Executive Session on 31 March 2008, under the provisions of AFI 36-
2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Mr. James G. Neighbors, Member
                 Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 September 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOO, dated 7 December 2007.
    Exhibit D.  Letter, SAF/MRBR, dated 11 January 2008.
    Exhibit E.  Letter, Counsel, dated 6 March 2008.




                                   WAYNE R. GRACIE
                                   Panel Chair