SECOND ADDENDUM TO 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

DOCKET NUMBER:  BC-1999-02707 

COUNSEL:  XXXXXXXXXX 

HEARING DESIRED:  NOT INDICATED 

 
 
IN THE MATTER OF: 
 
  XXXXXXX 
 
   
 
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
1.  The  Special  Selection  Board  (SSB)  results  for  the  Calendar 
Year  (CY)  1998A,  CY1999A,  and  CY2000A  Lieutenant  Colonel  MC 
Central Selection Boards, and the CY2000A Selective Continuation 
Board be declared void. 
 
2.  His  Date  of  Separation  (DOS)  of  31  Jul  01  be  declared  void 
and  he  be  constructively  credited  with  the  pay  of  the  rank  he 
would  have  been  appointed  to  with  all  special  pay,  up  until  he 
is properly separated from the service. 
 
3.  His  record  be  corrected  to  reflect  a  sequence  of 
constructive grade advancements  that are consistent with a fully 
qualified  officer  and  in  accordance  with  10  USC  619  and  624, 
indicating  that  a  reasonable  grade  advancement  would  be 
promotion  to  the  grades  of:    lieutenant  colonel  (O-5)  on 
1 May 99,  colonel  (O-6)  on  1  May  02,  brigadier  general  (O-7)  on 
1  May  04,  major  general  (O-8)  on  1  May  06,  and  lieutenant 
general  (O-9)  on  1  May  08.    By  amendment,  the  applicant  amended 
his  request  to  include  promotion  to  general  (O-10),  with  a  date 
of rank of 1 May 10. 
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
1.  The  SSBs  for  CY1998A  and  CY2000A  promotion  selection  boards 
were  comprised  of  the  same  officers  in  violation  of 
10 USC 612(b)  and  AFI  36-2501,  Officer  Promotions  and  Selective 
Continuation,  which  indicates  that  an  officer  cannot  serve  as  a 
member of two successive boards considering officers of the same 
competitive  category  and  grade.    While  the  CY1998A  and  CY2000A 
SSBs  were  not  technically  “successive,”  they  were  held 
consecutively  and  served  to  deny  the  applicant  the  right  to 
anonymity in the SSB process. 
 
2.  The  Promotion  Recommendation  Forms  (PRF),  which  met  the 
contested  SSBs,  were  not  completed  by  the  authorized  senior 
rater(s).  AFI 36-2406, Officer and Enlisted Evaluation Systems, 
explicitly  mandates,  “the  senior  rater  of  record  at  the  time 

eligibility  is  established  will  write  the  PRF.”    Three  officers 
were  chosen  to  write  the  PRFs  from  individuals  who  would  have 
been  the  applicant’s  senior  rater,  had  he  remained  on  active 
duty  at  Grand  Forks  Air  Force  Base.    This  was  an  acceptable 
accommodation  before  1  Jul  2000  when  the  identity  of  the 
authorized senior rater was not regulated. 
 
3.  The  AF  Forms  77,  Letter  of  Evaluation,  included  in  his 
officer  selection  record  (OSR),  did  not  comply  with  the 
provisions  of  AFI  36-2608,  Military  Personnel  Records  System, 
which requires the AF Form 77 to include the comment, “No report 
available  for  the  period  ______  through  ______.    Officer 
restored to active duty by direction of the Secretary of the Air 
Force.” 
 
4.  His  records  have  yet  to  reflect  his  receipt  of  full  and 
unrestricted practice privileges in his medical specialties.  In 
accordance  with  AFI  44-119,  Medical  Quality  Operations,  his 
professional  files  must  contain  notice  that  he  had  unrestricted 
full  privileges  in  each  of  his  specialties  with  annual  re-
privileging notices and a notice of his active staff appointment 
with annual reappointment. 
 
5.  The  officer  selection  briefs  (OSB)  prepared  for  the 
contested  boards  are  nearly  blank  and  without  explanation  from 
the  Air  Force.    The  Air  Force  needs  to  explain  why  certain 
blocks  on  the  OSB  are  blank  or  reflect  incomplete  information.  
The  inaccuracies  of  omission  in  the  OSBs  are  the  results  of  the 
applicant’s  wrongful  discharge  and  are  unfair,  prejudicial,  and 
make  his  service  appear  substantially  worse  than  it  would  have 
been had he remained on active duty. 
 
6.  The officer  performance reports (OPR), which were previously 
unsuccessfully  contested  before  the  AFBCMR,  rendered  for  the 
periods  ending  14  Aug  96  and  14  Aug  97,  contain  derogatory 
references  to  the  applicant  for  which  no  follow  up  reporting  of 
corrections  for  the  alleged  infractions  are  made  available  by 
the  Air  Force.    The  void  in  reporting  leaves  a  prejudicial 
vacuum,  created  by  the  Air  Force,  which  the  applicant  is  not 
responsible  to  make  up  in  letters  to  boards.    The  lack  of 
corrections to the OPRs is prejudicial and makes the applicant’s 
service  appear  substantially  worse  than  it  would  have  been 
absent these violations. 
 
7.  His  DOS  should  be  voided  and  he  should  be  constructively 
credited  with  the  pay  of  the  rank  he  would  have  been  appointed 
to,  along  with  all  back-pay,  allowances,  and  special  pays,  of 
the  rank  he  would  have  been  appointed  to,  up  until  he  is 
properly separated from the service. 
 
8.  He  was  unfairly  involuntarily  terminated  in  1997,  leaving 
his  military  records  incomplete.    The  record  would  be  populated 
with  new  records,  except  for  the  Air  Force’s  wrongful  actions.  
He  has  the  right  to  properly  constituted  promotion  boards, 
authorized  raters,  and  a  fair  and  complete  OSR  that  meets  these 

2 

in 

obstetrics 

and 

privileges 

boards.    He  has  the  right  of  return  to  his  active  duty  position 
and  in  a  grade  of  rank  consistent  with  his  former  medical  peers 
who were advanced.   
 
In  support  of  his  request,  the  applicant  provides  an  11-page 
statement  of  counsel,  with  nine  attachments,  which  include 
copies of his PRFs, LOEs, and OSBs. 
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On  4  Sep  01,  the  Board  considered  the  applicant’s  request  for  
removal  of  the  adverse  action  report  from  the  National 
Practitioner  Data  Bank  (NPDB),  restoration  of  full  and 
unrestricted 
gynecology, 
restoration  of  active  duty  status  with  back-pay  and  allowances, 
replacement of his OPR rendered for the period ending 14 Aug 96, 
correction  of  his  PRF  that  met  the  CY1996A  promotion  board  to 
remove  references  to  any  adverse  action,  correction  of  both  the 
OPR  and  PRF  that  met  the  CY1996A  promotion  board  to  eliminate 
“white space,” removal of the OPR rendered for the period ending 
14  Aug  97  from  his  records,  and  consideration  of  his  record  for 
promotion  to  the  grade  of  lieutenant  colonel  by  a  SSB  for  the 
CY1996A  CSB.    After  a  careful  review  of  the  evidence  of  record 
and  the  applicant’s  complete  submission,  the  Board  denied  his 
initial  requests  for  correction  of  his  record;  however,  the 
Board  found  that  his  discharge  was  technically  flawed  and 
recommended  his  records  be  corrected  to  show  that  he  was  not 
discharged  from  all  appointments  on  26  Nov  97,  but  he  was 
instead continued on active duty and ordered permanent change of 
station  (PCS)  to  his  home  of  record  until  30  Jun  98,  on  which 
date he was honorably discharged in the grade of major under the 
provisions  of  AFI 36-3207  (Nonselection,  Permanent  Promotion).  
Complete copies of the Memorandum for the Chief of Staff and the 
Record  of  Proceedings  (including  Exhibits)  are  attached  at 
Exhibit O. 
 
On  16  Sep  04,  in  accordance  with  a  remand  order  from  the  United 
States  Court  of  Federal  Claims,  the  Board  considered  the 
applicant’s  request  for  reconsideration.    He  contended  the 
Board’s  previous  decision  to  correct  the  record  to  reflect  his 
discharge  for  being  twice  passed  over  for  promotion  failed  to 
take  into  account  that  his  nonselections  for  promotion  were 
directly  related  to  the  improper  motives  and  actions  of  his 
command.  After carefully considering all the facts and evidence 
in the case, the Board recommended the applicant be provided SSB 
consideration  for  promotion  to  the  grade  of  lieutenant  colonel 
for  the  CY1996A  and  CY1997A  Lieutenant  Colonel  Medical 
Corps/Dental  Corps  (MC/DC)  Selection  Boards.    The  Board  further 
recommended that if he was not selected for promotion by an SSB, 
that  he  be  considered  for  continuation  by  the  SSB  for  the 

3 

in 

to 

with 

further 

order 

proceed 

CY1997A  MC  Major  Selective  Continuation  Board.    Complete  copies 
of the Memorandum for the Chief of Staff and the Addendum to the 
Record of Proceedings are attached at Exhibit W. 
 
On  17  Nov  05,  the  SSB  for  the  CY1996A  CSB  met,  reviewed  the 
applicant’s  record,  but  did  not  select  him  for  promotion.    On 
18 Nov 05, the SSB for the CY1997A CSB met and the applicant was 
again  nonselected  for  promotion;  however,  the  CY1997A  SSB  did 
select him for continuation on active duty. 
 
On  16  Mar  06,  AFPC  notified  the  applicant  of  his  selection  for 
continuation and advised that he could submit an application for 
reinstatement  to  active  duty.    The  applicant  did  not  submit  a 
request  for  reinstatement,  but  instead  determined  to  accept 
continuation 
SSB 
consideration(s) until selected for promotion.  
 
On  22  Jun  06,  the  applicant,  through  counsel,  accepted 
continuation  for  the  three-year  period  ending  31  Jul  01  and 
requested  SSB  consideration  for  promotion  to  the  grade  of 
lieutenant  colonel  for  the  CY1998A,  CY1999A,  and  CY2000A 
lieutenant colonel promotion boards.   
 
On  19  Jul  06,  the  Board  directed  the  applicant’s  records  be 
corrected  to  reflect  his  date  of  separation  of  31  Jul  01  and 
that  his  records  be  considered  for  promotion  to  the  grade  of 
lieutenant  colonel  by  SSB  for  the  aforementioned  promotion 
selection  boards.    The  applicant  was  non-selected  for  promotion 
by  each  board  and  was  therefore  considered  for  selective 
continuation  by  the  SSB  for  the  CY2000A  board;  however,  he  was 
non-selected for continuation. 
 
On 22 Dec 09, the applicant submitted his instant request to the 
Board;  however,  his  case  was  subsequently  administratively 
closed,  without  prejudice,  as  he  was  pursuing  similar  relief 
through the court (Exhibit X). 
 
On  7  May  10,  the  applicant  requested  a  stay  of  his  case  before 
the court so that he could pursue his instant request before the 
AFBCMR.    On  7  Jun  10,  the  court  granted  the  applicant’s  request 
and his case before the AFBCMR was re-opened (Exhibit Y).   
 
On  23  Nov  11,  Counsel  requested  the  applicant’s  case  be 
administratively  closed  in  order  to  provide  a  revised  rebuttal 
to  the  advisory  opinions  described  below.    On  28  Nov  11,  the 
applicant’s case was re-opened. 
 
The  remaining  relevant  facts  pertaining  to  this  application  are 
contained  in  the  letters  prepared  by  the  appropriate  offices  of 
the Air Force, which are attached at Exhibits Z through AF. 
 
________________________________________________________________ 
 
 
 

4 

AIR FORCE EVALUATION: 
 
AFPC/DPSID  recommends  denial.    Having  complied  with  the  AFBCMR 
directive  and  the  provisions  of  AFI  36-2406,  the  PRFs  were 
accomplished  within  regulatory  guidelines  and  although  the  AF 
Forms 77 used slighted different wording than that prescribed in 
the  AFI,  the  wording  used  did  not  change  the  meaning  or  content 
of  the  forms.    The  applicant  wants  to  determine  whether  the 
selection  of  the  senior  raters  who  wrote  the  PRFs  that  met  the 
contested boards was in compliance with the applicable AFI.  AFI 
36-2406,  Officer  and  Enlisted  Evaluation  Systems,  paragraph 
4.13,  provides  instructions  when  officers  are  “added”  to 
promotion  eligibility.    Complying  with  AFBCMR  instructions  in 
which  the  applicant  remained  on  active  duty  at  Grand  Forks  AFB 
and  becoming  promotion  eligible  for  the  contested  promotion 
boards,  the  senior  rater  established  was  the  Wing  Commander, 
Grand  Forks  AFB.    The  three  officers  designated  to  accomplish 
these  PRFs  were  each  assigned  to  this  position  during  the 
original promotion cycles.  The applicant’s corrected record was 
used  by  the  senior  raters  to  accomplish  the  PRFs  as  with  any 
other  officer  who  is  eligible  for  a  particular  promotion  board 
and a PRF is accomplished. 
 
The  applicant  also  contends  the  AF  Forms  77,  prepared  for 
consideration  by  the  contested  boards,  did  not  comply  with  the 
provisions  of  AFI  36-2608,  1  Jul  96,  paragraph  2.24.5.    Upon 
review  of  these  forms,  it  was  discovered  the  statements  placed 
on  the  contested  AF  Forms  77  included  incorrect  wording.    While 
the  wording  used  was  not  the  exact  wording  prescribed  in   
AFI 36-2406,  it  did  not  change  the  meaning  or  content  of  the 
AF Forms  77; 
therefore,  the  AF  Forms  77  have  been 
administratively  corrected  to  include  the  comment,  “Not  rated 
for  the  above  period.    Report  is  not  available  for 
administrative  reasons,”  rather  than  “No  report  available  for 
the  above  period.    No  report  required  IAW  AFI  36-2402.”    Having 
complied  with  the  AFBCMR  directive  and  AFI 36-2406,  the  PRFs 
were  accomplished  within  regulatory  guidelines  and  although  the 
AF  Forms  77  used  slightly  different  wording,  the  wording  used 
did not change the meaning or content of these forms. 
 
The  application  should  be  also  be  dismissed  as  untimely  under 
the  equitable  doctrine  of  laches  as  the  applicant  has 
unreasonably  and  inexcusably  delayed  in  asserting  his  claim.  
The  test  to  be  applied  is  not  whether  he  discovered  the  error 
within  three  years,  but  whether,  through  due  diligence,  it  was 
discoverable  (see  OpJAGAF  1998/56,  28  Sep  88,  and  the  cases 
cited therein).  However, he waited over ten years to assert his 
claim.    Clearly  the  alleged  error(s)  upon  which  he  relies  has 
been discoverable since the alleged error(s) occurred.   
 
A complete copy of the AFPC/DPSID evaluation is at Exhibit Z. 
 
AFPC/DPSOO  recommends  denial.    The  applicant  contends  there  are 
various  omissions  in  his  OSBs  that  served  to  prejudice  the  SSB 
panel  members;  however,  his  OSBs  are  correct  and  the  lack  of 

5 

information  in  certain  areas  should  not  be  construed  as  unfair 
or prejudicial.  The Professional Military Education (PME) block 
is  blank  because  the  applicant  had  not  completed  any  form  of 
PME; the Academic Education block is blank because it holds only 
the  two  highest/most  recent  degrees  updated  by  the  Air  Force 
Institute  of  Technology  (AFIT)  and  training  is  not  maintained 
anywhere on the OSB; the Aeronautical/Flying Data block is blank 
as  it  is  intended  to  reflect  flying  hours  for  rated  officers, 
which  the  applicant  was  not;  the  Acquisition  Corps  block  is 
blank  because  the  applicant  did  not  meet  the  eligibility 
criteria  (occupy  a  critical  acquisition  position  and  meet 
specific  training  and  experience  requirements);  the  Joint 
Reporting Category block is blank as it only applies to officers 
who  have  had  an  assignment  to  a  Joint  Duty  Assignment,  Joint 
Staff  or  to  a  Specified  or  Unified  Command  and/or  a  Defense 
Agency,  which  the  applicant  was  not;  the  Joint  Duty  block  is 
blank  because  the  applicant  never  held  a  joint  assignment;  the 
Overseas  Duty  History  is  blank  because  the  applicant  was  never 
assigned  overseas;  the  Assignment  History  was  correctly 
populated  as  the  source  documents  for  duty  titles  are  the 
applicant’s OPRs.  The applicant was provided the opportunity to 
meet  SSBs  based  on  accepting  continuation.    He  was  fairly 
considered  but  was  not  selected  for  promotion.    No  additional 
relevant  evidence  has  been  presented  to  demonstrate  the 
existence  of  a  probable  error  or  injustice.    Further,  to  grant 
direct  promotion  would  be  unfair  to  the  hundreds  of  officers 
with  extremely  competitive  records  who  also  were  not  promoted.  
Since  there  were  no  errors  on  the  OSB,  there  are  no  grounds  to 
direct further SSBs. 
 
A complete copy of the AFPC/DPSOO evaluation is at Exhibit AA. 
 
AFPC/PB recommends denial, indicating there is no evidence of an 
error  or  injustice  with  respect  to  the  panel  membership  for  his 
SSBs.    Of  the  five  SSBs  which  considered  the  applicant  for 
promotion,  only  the  CY1998A  and  CY2000A  SSBs  were  conducted 
using  the  same  board  membership.    The  CY1999A  board  was 
reconstituted  via  SSB  using  different  board  membership.    Thus, 
no  board  member  served  on  successive  boards  considering  the 
applicant  for  promotion.    The  standard  practice,  dating  back  to 
the  early  1980s,  is  to  apply  the  term  “successive”  to  mean  “by 
year”  and  not  “in  order  of  review.”    It  is  not  uncommon  and  is 
entirely  proper  and  consistent  with  Title  10  for  an  officer’s 
record  to  be  considered  in  alternate  years  during  the  same 
session  of  SSBs  using  the  same  board  members.    By  doing  so,  no 
board  member  would  serve  on  two  successive  SSBs  for  the  purpose 
of  considering  an  officer  of  the  same  grade  and  competitive 
category for promotion to the next higher grade. 
 
A complete copy of the AFPC/DPSOO evaluation is at Exhibit AB. 
 
AFPC/DPSOS  recommends  denial  of  the  applicant’s  request  to  void 
his  31  Jul  01  DOS,  indicating  there  is  no  evidence  of  an  error 
or injustice.  The applicant met the CY2000A promotion board and 
was  not  selected  for  promotion  or  continuation  and  his  DOS  was 

6 

his 

indicating 

the 

files, 

professional 

appropriately  established  in  accordance  with  10  USC  632,  Effect 
of Failure of Selection for Promotion. 
 
A complete copy of the AFPC/DPSOS evaluation is at Exhibit AC. 
 
AFMOA/SGHQ recommends denial of  the applicant’s  requests related 
to 
available 
documentation  does  not  support  his  request.    While  he  indicates 
that  his  records  should  reflect  his  receipt  of  full  and 
unrestricted  practice  privileges  in  his  medical  specialties, 
including  obstetrics,  gynecology,  family  medicine,  and  aerospace 
medicine,  his  record  indicates  he  did  not  hold  privileges  in 
family  or  aerospace  medicine  and  he  has  provided  no  evidence 
that it should. 
 
A complete copy of the AFMOA/SGHQ evaluation is at Exhibit AD. 
 
AFPC/JA  recommends  denial,  indicating  the  applicant  has  not 
documented any error or injustice, thus there are no grounds for 
the  relief  he  seeks.    Counsel  petitions  the  Air  Force  to  “show 
cause”  as  to  why  his  31  Jul  01  DOS  should  not  be  voided  and  he 
be  constructively  credited  with  pay  of  the  rank  he  would  have 
been appointed to, with all back-pay and allowances, up until he 
is  properly  separated  from  the  service.    However,  the  burden  of 
proof  of  an  error  or  injustice  is  on  the  applicant;  the  Air 
Force  is  not  required  to  show  cause  as  to  why  the  applicant’s 
DOS  should  be  voided—particularly  where  the  applicant  has 
offered no evidence to support this request, nor even any theory 
as to why the request should be granted.  The Board directed the 
applicant’s  record  be  corrected  to  reflect  the  contested  DOS 
based  on  the  applicant’s  acceptance  of  continuation  by  the  SSB 
for  the  CY1997A  Selective  Continuation  Board.    It  was  the 
approval  of  the  DOS  by  this  Board  that  provided  the  basis  to 
award  the  applicant  SSBs  for  the  CY1998A,  CY1999A,  and  CY2000A 
promotion  and  selective  continuation  boards  that  his  record 
ultimately  met.    He  has  offered  no  evidence  whatsoever  the  DOS 
is incorrect or why that date should be invalidated. 
 
Counsel  takes  this  rather  far  reaching  and  unsupported  request 
and carries it even further by requesting the Board have the Air 
Force  show  cause  as  to  why  the  applicant’s  record  does  not 
reflect  a  sequence  of  constructive  advancements  during  his 
separation  from  active  duty  that  are  consistent  with  a  fully 
qualified officer and IAW 10 USC 619 and 624.  In particular, he 
suggests  the  applicant  be  promoted  all  the  way  to  the  grade  of 
lieutenant  general.    Once  again,  the  burden  of  proof  is  on  the 
applicant,  not  the  Air  Force  to  “show  cause.”    However,  the 
applicant  has  offered  absolutely  no  evidence  to  support  such  a 
radical  request.    He  was  properly  discharged  from  the  Air  Force 
because  he  was  twice  passed  over  for  promotion  to  lieutenant 
colonel—both  at  the  original  central  selection  boards  and  the 
SSBs  that  were  awarded  in  2006.    Further,  the  applicant  has 
failed  to  prove  any  material  error  with  respect  to  the  conduct 
or  outcome  of  those  SSBs,  or  with  the  selection  record  that  was 
considered by those boards.  As a consequence, his discharge was 

7 

not  only  proper,  it  was  required  by  law  (10  USC  632).    There  is 
no  basis  to  void  the  applicant’s  discharge  and  “constructively” 
continue  him  on  active  duty,  promoting  him  along  the  way  until 
he reaches the rank of lieutenant general.  Even if an error had 
been  established  that  would  invalidate  his  2001  discharge,  the 
appropriate  remedy  would  have  included  reinstatement  and  actual 
service  before  any  service  credit  would  be  awarded.    And  any 
promotions  would  have  had  to  come  as  a  result  of  selection  by 
actual  promotion  board,  where  the  applicant  would  have  competed 
against  his  peers.    The  scenario  offered  by  counsel  is  nothing 
more than fanciful conjecture. 
 
In  summary,  the  applicant  was  properly  discharged  from  the  Air 
force.    His  nonselections  for  promotion—which  formed  the  basis 
of  the  discharge  under  10  USC  632—were  fully  supported  by  a 
record  of  substandard  performance  that  was  properly  documented 
on  the  OPRs  and  PRFs  of  record.    His  military  record  that  met 
the  board  was  complete  and  accurate.    Furthermore,  there  is  no 
basis  to  withdraw  any  of  the  adverse  or  derogatory  information 
from  the  applicant’s  record,  nor  is  the  Air  Force  required  to 
document  performance  after  26  Nov  97,  because  the  applicant 
never actually performed any active duty for the Air Force after 
that  date.    The  decision  by  the  Board  to  change  his  record  to 
show  he  was  discharged  pursuant  to  10  USC  632  on  31  Jul  01 
conferred  a  benefit  on  the  applicant,  having  deleted  from  his 
record  his  request  for  discharge  in  lieu  of  discharge  for  cause 
that  it  reflected  originally.    Given  the  applicant’s  overall 
substandard  level  of  performance  while  on  active  duty,  the 
previous  corrections  constitute  the  full  and  proper  extent  of 
any  correction  to  his  record  that  was  (or  is)  warranted.    For 
all  these  reasons,  the  applicant  has  failed  to  prove  any 
material  error  or  injustice,  and  the  Board  should  deny  each  and 
every contention put forth in Counsel’s petitions for relief. 
 
A complete copy of the AFPC/JA evaluation is at Exhibit AE. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
Counsel  argues  the  primary  issue  of  the  applicant’s  case  has 
always  been  whether  he  was  properly  discharged.    The  Air  Force 
attempt  at  preparing  officer  selection  records  (OSR)  for  three 
additional  rating  years  after  the  applicant  was  wrongfully 
discharged  excludes  an  accounting  for  the  applicant’s  missed 
opportunities  (the  amassing  and  recording  of  three  years  of 
practice  accomplishments).    The  Air  Force  now  wishes  to  portray 
those  three  years  as  having  been  on  active  duty  without  ratings 
being  conducted  and  not  insulate  the  applicant  from  being  the 
object  of  blame  for  the  absence  of  the  ratings.    Five  and  one-
half undocumented years outside of clinical practice compared to 
six  documented  months  of  clinical  work  does  not  allow  the  fair 
portrayal  of  an  Air  Force  officer  and  physician.    Title  10  USC 
628 requires that an SSB shall consider the record of an officer 
as  his  record,  if  corrected,  would  have  appeared  to  the  board 

8 

that  considered  him.    The  courts  have  upheld  the  OSR  documents 
sent  to  a  selection  board  must  be  substantially  complete  and 
must fairly portray the officer’s record, which has not happened 
in  the  applicant’s  case.    Only  the  Air  Force  is  accountable  for 
the  lack  of  OSR  documents  after  27  Nov  97.    Only  the  Air  Force 
is responsible for showing cause as to why the applicant did not 
receive  full  and  unrestricted  privileges  in  Family  Practice  and 
Flight  Medicine.    The  burden  of  proof  has  shifted  to  the  Air 
Force to show that its errors were harmless, i.e. could not have 
contributed to the applicant’s promotion/continuance rejections. 
 
The  Air  Force  has  denied  itself  the  opportunity  to  objectively 
critique  the  applicant’s  performance.    Its  assessments  of  him 
now  can  only  be  judged  as  speculative,  being  unable  to  produce 
firm  evidence  that  he  would  not  have  been  advanced  in  rank  or 
continued.    The  problem  with  speculation  is  where  do  you  draw 
the  line?    Decisions  based  upon  speculation  are  arbitrary  and 
capricious.    The  applicant  has  provided  clear  and  convincing 
evidence  that  his  OSR  remains  incomplete  and  irreparable.    The 
fault belongs to the Air Force and the record will never portray 
the  applicant  fairly  and  precludes  the  use  of  it  by  any  regular 
or special selection boards convened to determine whether or not 
he  would  have  been  promoted  or  selected  for  continuance  in 
comparison to his peers. 
 
While the Court agrees with the AFPC/JA position that the burden 
of proof to establish an error or injustice is on the applicant, 
the  Air  Force  provided  such  proof  of  material  legal  error  when 
it uncovered the 25 Nov 97 abeyance order, which was “either not 
conveyed  or  not  complied  with,”  and  separated  the  applicant 
prematurely.    Had  the  abeyance  order  been  followed  and  the 
applicant  not  been  wrongfully  discharged  and  excluded  from 
active  duty  pursuits,  there  is  no  evidence  to  indicate  that  he 
would  not  have  become  a  rated  flight  surgeon,  attended  Air 
Command  and  Staff  College,  or  been  assigned  overseas,  given  the 
opportunity  to  do  so.    As  such,  the  lack  of  information  and 
misinformation  concerning  his  clinical  and  officer  duty 
assignments  during  1998,  1999,  and  2000,  as  reflected  in  the 
respective  years’  constructed  officer  selection  records  (OSR), 
is  materially  unfair,  unjust,  and  the  direct  result  of  his 
wrongful discharge.  
 
In  addition,  the  applicant’s  chances  for  selection  or 
continuation  were  further  prejudiced  by  the  arbitrary  manner  in 
which  Air  Force  officials  decided  to  constitute  the  membership 
of  the  contested  boards,  as  well  as  the  manner  in  which  they 
decided  to  construct  his  OSRs  which  met  these  boards.    As  for 
the  composition  of  the  1998  and  2000  SSBs,  while  the  AFPC/PB 
evaluation  provides  a  hypothetical  scenario  wherein  a  single 
board  panel  reviews  three  promotion  years  as  being  consistent 
with  the  standard  process  used  by  the  Air  Force  for  over  thirty 
years,  whether  or  not  this  practice  has  been  challenged  before 
is  unknown  and  is  irrelevant  to  the  intent  behind  a  clearly 
worded  law  and  the  misinterpretation  by  the  Air  Force.    The  Air 
Force is out of compliance with 10 USC 612(b).   

9 

Counsel  reiterates  his  argument  the  Air  Force  failed  to  deliver 
fair,  complete,  and  equitable  OSRs.    The  PRFs  which  met  the 
contested  promotion  and  selective  continuation  boards  were  not 
completed by the authorized senior raters in accordance with AFI 
36-2406,  Officer  and  Enlisted  Evaluation  Systems.    An  officer 
serving  on  active  duty  has  only  one  Senior  Rater  at  a  time,  yet 
officials  chose  three  separate  rating  officers  to  write  three 
separate  PRFs  destined  for  three  separate  SSBs  representing 
three  separate  Central  Selection  Boards.    This  was  an  arbitrary 
decision  made  by  Air  Force  officials  and  not  supported  by 
governing  AFI.    Additionally,  while  Air  Force  officials  chose 
the  Senior  Raters  under  the  assumption  the  applicant  would  have 
remained  at  Grand  Forks  AFB,  there  is  evidence  that  plans  were 
underway  to  move  the  applicant  from  Grand  Forks  prior  to  the 
CY1997A  lieutenant  colonel  promotion  board.    Had  the  applicant 
not  been  erroneously  discharged,  he  would  have  been  moved  from 
Grand  Forks  AFB  according  to  documents  received  from  a  Freedom 
of  Information  Act  (FIOA)  request.    While  it  can  only  be 
speculated  where  the  applicant  would  have  ended  up  were  it  not 
for his wrongful discharge, it is certain that he would not have 
been  at  Grand  Forks  AFB.    Accordingly,  the  Senior  Raters  who 
authored the contested PRFs were incorrectly identified. 
 
Addressing  the  nearly  blank  and  prejudicial  OSBs,  while  AFPC 
contends  they  were  correctly  constituted  based  on  the 
applicant’s  record,  there  is  no  evidence  to  indicate  the 
applicant  would  not  nor  could  not  have  completed  ACSC,  become  a 
rated  flight  surgeon,  or  been  assigned  overseas  prior  to  the 
CY2000A  board  had  he  not  been  wrongfully  separated.    What  is 
certain  is  that  he  would  not  have  been  consigned  to  the  Health 
and  Wellness  Center  (HAWC)  as  a  clerk  during  1998,  1999,  and 
2000 as reflected in his reconstructed PRFs and OSBs.   
 
As  for  the  AF  Forms  77  included  in  the  OSRs,  AFPC  acknowledges 
they were worded incorrectly, but indicates the wording used did 
not  change  the  meaning  or  content  of  the  AF  Forms  77.    By 
deviating  from  its  own  established  instructions,  the  Air  Force 
places  the  burden  of  proof  on  itself  to  show  that  altering  the 
words  as  prescribed  by  its  instructions,  did  not,  or  will  not, 
preclude  promotion  board  members  from  rendering  an  erroneous 
decision concerning the applicant’s promotability. 
 
As for the applicant’s receipt of full and unrestricted practice 
privileges,  it  is  illogical  to  conclude  the  absence  of  his 
clinical  appraisal  at  whatever  station  he  was  sent  to, 
subsequent  upgrade  to  full  and  unrestricted  privileges,  and 
medical practice results from 1998, 1999, and 2000 from his OSR, 
did  not  have  a  negative  impact  on  the  respective  board  panel 
members  and  contributed  to  his  nonselection  for  promotion  and 
continuation. 
 
________________________________________________________________ 
 
 
 

10 

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’s  complete  submission,  including  his  response  to  the 
Air  Force  evaluations,  was  thoroughly  reviewed  and  his 
contentions  duly  noted;  however,  in  our  view,  the  Air  Force 
offices  of  primary  responsibility  (OPR)  have  conducted  a 
thorough  review  of  the  evidence  of  record  and  addressed  the 
issues  presented  by  the  applicant  and  we  are  in  agreement  with 
their  opinions  and  recommendations.    As  a  result  of  the  Board’s 
previous determinations, the applicant’s 26 Nov  97 discharge for 
substandard  performance  was  set  aside  and  his  record  was 
corrected  to  reflect  he  was  discharged  on  30  Jun  98  for  being 
non-selected  for  promotion.    Subsequent  requests  for  correction 
of  his  records  resulted  in  him  being  afforded  SSB  consideration 
for  the  CY1996A  and  CY1997A  lieutenant  colonel  promotion 
selection  boards,  with  the  CY1997A  SSB  also  serving  as  a 
selective  continuation  board.    While  he  was  not  selected  for 
promotion, he was selected for continuation and his records were 
corrected  to  reflect  he  was  continued  on  active  duty  until 
31 Jul  01.    He  was  offered  the  opportunity  to  apply  for 
reinstatement,  but  instead  determined  to  accept  continuation  in 
order  to  proceed  with  further  SSBs.    He  subsequently  requested 
and was provided SSB consideration for the CY1998A, CY1999A, and 
CY2000A  lieutenant  colonel  promotion  selection  boards,  with  the 
CY2000A  SSB  also  serving  as  a  selective  continuation  board,  for 
which he was not selected.   
 
Although  a  beneficiary  of  this  established  process,  Counsel  now 
argues  the  applicant  should  be  reinstated  and  directly  promoted 
to  the  grade  of  general  (O-10),  contending  that  his  Officer 
Selection  Record  (OSR)  is  irreparably  incomplete  and  the  fault 
belongs  to  the  Air  Force.    We  disagree.    While  Counsel  disputes 
the  membership  of  the  CY1998A  and  CY2000A  SSBs  and  argues  they 
violated  the  intent  of  10 USC  612(b),  as  they  constituted 
“successive” boards, we are not persuaded by counsel’s arguments 
and  note  the  comments  of  AFPC/PB  indicating  it  is  not  uncommon 
and  entirely  proper  and  consistent  with  Title  10  for  an 
officer’s  record  to  be  considered  in  alternate  years  during  the 
same  session  of  SSBs  using  the  same  board  members.    We  accept 
their  view  and  find  no  basis  to  conclude  the  applicant  did  not 
receive  fair  and  equitable  consideration  by  these  contested 
boards.  Therefore, in the absence of evidence the applicant was 
treated  differently  than  others  similarly  situated  and  that  a 
clear  violation  of  policy  or  statute  has  occurred,  we  find  no 
basis to question the membership of the contested SSBs.   
 
 

11 

Counsel also argues the PRFs which met the contested SSBs should 
be  declared  as  invalid  as  they  were  authored  by  officers 
selected  on  the  incorrect  premise  the  applicant  would  have 
remained  at  Grand  Forks  AFB  had  he  not  been  discharged.    In  our 
view,  it  was  reasonable  to  have  the  PRFs  prepared  by  the 
officers  selected.    There  is  no  basis  to  conclude  the  PRFs 
rendered were not a fair assessment of the applicant’s potential 
to  serve  in  the  higher  grade.    While  Counsel  provides  copies  of 
email  traffic  indicating  that  command  officials  intended  to 
reassign  the  applicant  to  another  installation  prior  to  the 
matter  under  review,  he  concedes  that  one  can  only  speculate  as 
to  where  the  applicant  would  have  ended  up  had  he  remained  on 
active duty.   
 
Regarding  Counsel’s  contention  that  an  erroneous  statement 
included  on  the  AF  Forms  77  that  met  the  contested  boards 
precluded  the  applicant  from  receiving  full  and  fair 
consideration for promotion, we are not persuaded.  In our view, 
the noted error was harmless and the evidence is insufficient to 
conclude  the  error  had  a  material  impact  on  the  applicant’s 
consideration  for  promotion.    In  this  respect,  we  note  the 
comments  of  AFPC/DPSID  indicating  that  while  the  wording  used 
was  not  the  exact  wording  prescribed  in  AFI 36-2406,  it  did  not 
change the meaning or content of the AF Forms 77.  We agree.   
 
Counsel  further  contends  the  applicant’s  records  have  yet  to 
reflect his receipt of full and unrestricted practice privileges 
in  his  medical  specialties  in  accordance  with  AFI  44-119, 
Medical  Quality  Operations;  however,  other  than  his  own 
assertions,  Counsel  provides  no  evidence  to  indicate  that  our 
previous  determination  on  this  point  was  erroneous.    To  the 
contrary,  the  evidence  of  record  clearly  indicated  the 
revocation  of  his  practice  privileges  had  a  basis  in  obvious 
problems  with  patient  care.    Therefore,  our  view  remains  that 
said revocation did not constitute an error or injustice.   
 
As  for  Counsel’s  argument  the  Air  Force  needs  to  explain  why 
certain blocks on the Officer Selection Brief (OSB) are blank or 
reflect incomplete information,  we direct Counsel’s attention to 
the  evaluation  authored  by  AFPC/DPSOO  for  the  requested 
explanation  and  agree  with  their  determination  the  OSB’s  were 
correctly  constructed  based  on  the  applicant’s  underlying 
military  personnel  records.    We  note  Counsel’s  contention  in 
response  to  this  evaluation  that  there  is  no  evidence  to 
indicate  the  applicant  would  not  have  completed  ACSC,  become  a 
rated  flight  surgeon,  or  been  assigned  overseas  prior  to  the 
CY2000A  board  had  he  not  been  wrongfully  separated.    However, 
there  is  also  no  evidence  to  the  contrary  and  these  assertions, 
in our view, are extraordinarily speculative, and speculation is 
no basis for us to recommend fabricating an OSB, or recommending 
other changes to the record, which have no basis in fact.   
 
Counsel  also  contends  the  lack  of  corrections  to  the  OPRs 
rendered for the periods ending 14 Aug 96 and 14 Aug 97, and the 
lack  of  any  follow-up  reporting  on  the  applicant’s  duty 

12 

performance,  is  prejudicial  to  the  applicant  and  makes  his 
service  appear  substantially  worse  than  it  would  have  been  had 
the applicant not been discharged.  However, again, counsel sets 
forth  an  argument  based  on  speculation  of  what  the  applicant’s 
record  would  have  looked  like  had  he  continued  to  serve  on 
active  duty.    Counsel  has  presented  no  evidence  that 
corroborates  that  the  applicant’s  service,  were  it  not  for  his 
discharge,  would  have  been  sufficiently  meritorious  to  warrant 
his  selection  for  promotion  to  a  higher  grade.    In  fact,  the 
evidence  of  record  indicates  the  opposite.    While  this  Board’s 
recommendation  to  provide  the  relief  previously  rendered  was 
attributable  to  a  technical  flaw  in  the  applicant’s  discharge, 
the  Board  has  always  held  the  view  that  his  records 
appropriately  reflect  that  he  was  a  marginal  performer  while  he 
was on active duty and it was this substandard performance which 
has led to the outcomes he contests.   
 
Finally,  Counsel  argues  that  it  is  impossible  for  the  applicant 
to  receive  full  and  fair  consideration  for  promotion  or 
continuation  by  SSB  because  the  applicant’s  erroneous  1997 
discharge  makes  it  impossible  to  constitute  an  accurate,  fair, 
and comprehensive officer selection record (OSR) due to the fact 
he  was  erroneously  discharged.    We  disagree.    The  merits  of  the 
established  promotion  process  outweigh  his  arguments  and  should 
be  given  priority  in  our  determination  of  what  is  full  and 
fitting  relief.    We  note  this  is  in  keeping  with  the  Board’s 
actions  in  previous  cases  of  this  type  and  have  found  that 
numerous  officers  who  have  voids  in  their  records  have 
successfully  competed  for  promotion  through  the  SSB  process.  
Furthermore, we note the applicant was offered an opportunity to 
request  reinstatement  to  active  duty,  but  instead  elected 
continuation and further SSB consideration.  Thus it appears his 
actions  contributed  greatly  to  the  predicament  he  now  finds 
himself  and  is  the  primary  reason  he  has  not  received  the 
performance reports and clinical assessments he indicates are so 
critical  to  him  receiving  full  and  fair  consideration  for 
promotion/continuation.    Additionally,  had  he  chosen  to  be 
reinstated  to  active  duty,  based  on  actions  in  cases  of  similar 
circumstances,  we  could  have  considered  providing  further 
corrective action that would have allowed him the opportunity to 
build  a  competitive  officer  selection  record.    Instead,  the 
applicant  made  a  deliberate  decision  to  choose  continuation  and 
further SSB consideration over reinstatement, thus  depriving the 
Air  Force  of  the  ability  to  evaluate  his  performance  and 
clinical abilities.  He now argues the Air Force is at fault for 
what  Counsel  describes  as  a  “prejudicial  vacuum”  in  the 
applicant’s  record  which  precludes  its  use  by  any  regular  or 
special  selection  boards.    We  find  this  argument  disingenuous 
and  are  not  convinced  that  his  nonselections  for  promotion  and 
continuation  were  based  on  anything  other  than  what  appears  to 
be  documented  poor  duty  performance  while  he  served  on  active 
duty  and  his  subsequent  decision  to  elect  continuation  without 
reinstatement.   
 
 

13 

Therefore, in view of the above and after a lengthy and thorough 
consideration  of  the  documentation,  statements,  and  contentions 
presented  throughout  this  more  than  ten-year  debate  regarding 
the  applicant’s  discharge,  we  believe  the  applicant  has  been 
provided  full  and  fitting  relief  in  the  aftermath  of  his 
discharge  and  find  no  basis  to  recommend  any  relief  beyond  that 
previously rendered. 
 
________________________________________________________________ 
 
THE BOARD DETERMINES THAT: 
 
The  applicant  be  notified  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice;  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-2001-04750  in  Executive  Session  on  28  Nov  11,  under 
the provisions of AFI 36-2603: 
 
     Mr. XXXXXXXXXX, Vice Chair 
     Mr. XXXXXXXXXX, Member 
     Mr. XXXXXXXXXX, Member 
 
The  following  documentary  evidence  pertaining  to  AFBCMR  Docket 
Number BC-1999-02707 was considered: 
 
     Exhibit W.  Memorandum for the Chief of Staff and  
                 Addendum to Record of Proceedings,  
                 dated 12 Oct 04, w/Exhibits. 
     Exhibit X.  Letter, Applicant’s Counsel,  
                 dated 22 Dec 09, w/atchs. 
     Exhibit Y.  Orders of the US Court of Federal Claims,  
                 dated 7 May 10 and 7 Jun 10. 
     Exhibit Z.  Letter, AFPC/DPSID, dated 29 Apr 11. 
     Exhibit AA.  Letter, AFPC/DPSOO, dated 13 Jun 11. 
     Exhibit AB.  Letter, AFPC/PB, dated 30 Jun 11. 
     Exhibit AC.  Letter, AFPC/DPSOS, dated 7 Sep 11. 
     Exhibit AD.  Letter, AFMOA/SGHQ, dated 6 Oct 11. 
     Exhibit AE.  Letter, AFPC/JA, dated 12 Oct 11. 
     Exhibit AF.  Letter, AFBCMR, dated 14 Oct 11. 
     Exhibit AG.  Letter, Applicant’s Counsel,  
                          dated 23 Nov 11, w/atchs. 
 
 
 
 
                                   XXXXXXXXXX 
                                   Vice Chair 

 

14