RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-00938
		INDEX CODE:  131.09

		COUNSEL:  XXXX XXXX

		HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be directly promoted to the grade of lieutenant colonel with a date when such promotion would have been effective if he had been reinstated from a Temporary Disability Retired List (TDRL).

_________________________________________________________________

APPLICANT CONTENDS THAT:

All of his nonselections for promotion to the grade of lieutenant colonel were erroneous.

He had to compete for promotion, through no fault of his own, with an unjustly abbreviated record.

The Central Selection Boards (CSBs) and Special Selection Boards (SSBs) that were conducted to consider him for promotion were conducted illegally.

In support of his appeal, the applicant provided a counsel's brief, promotion board statistics, an excerpt of a court hearing transcript, a talking paper on selected benchmark records, a Freedom of Information (FOIA) response, a declaration from a retired officer, and an excerpt of a Memorandum of Points and Authorities in Support of Defendant's Response to Plaintiff's Cross-Motion for Summary Judgment and Reply to Plaintiff's Response to Defendant's Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force, on 29 Nov 79 and was voluntarily ordered to extended active duty on that date.  Applicant was relieved from active duty on 31 Aug 99 and retired, effective 1 Sep 99, in the grade of major.  He was credited with 20 years, 2 months, and 10 days of active duty service.

Applicant's Officer Performance Report (OPR) profile since 1989 follows:

	PERIOD ENDING	EVALUATION

	 1 Mar 89	Meets Standards
	 1 Mar 90	Meets Standards
	 1 Mar 91	Meets Standards
	30 Jan 92	Meets Standards
	25 Aug 97 	Report Not Available for
			Administrative Reasons
 #	 3 Apr 98	Meets Standards
##	19 Jan 99	Meets Standards

 # Top Report at the time he was considered and nonselected for promotion to the grade of lieutenant colonel by the Calendar Year 1998B (CY98B) (1 Jun 98) Lt Col Board.

## Top Report at the time he was considered and nonselected for promotion to the grade of lieutenant colonel by the CY99A (19 Apr 99) Lt Col Board.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPB addressed the portions of the application pertaining to selection board processes.  They indicated that despite the verbiage used in the 7 Jan 84 talking paper provided by the applicant in support of his appeal, their current procedures for selecting benchmark records have been unchanged over the years and are in full compliance with applicable guidelines.

AFPC/DPPB stated that concerning the scoring scale, they disagree that one low score would distort the overall perception of a record’s quality.  That scoring scale is from 6 to 10 in half point increments.  Board members are briefed to try to apply a 7.5 score to an “average” record and to try to use the entire scoring range throughout the evaluation process.  Recognizing that the scoring of records is a subjective process, it should come as no surprise that individuals may have a slightly different definition of what constitutes an “average record.” Additionally, history has revealed that a given board member may be a more liberal scorer than other board members and have a higher distribution of scores; i.e., from 7 to 10.  On the other hand, a given board member may be a more conservative scorer and have a distribution of scores from 6 to 9.  In either case of these examples a 7.5 score would not likely be the “average” record.  As long as each board member applies their individual standard consistently throughout the scoring process, each consideree will get a fair and equitable evaluation.  Only when two or more board members score the same record with a variance of two or more points, i.e., 7 and 9 or 7 and 9.5, does significant disagreement occur and through discussion the variance is resolved; i.e., less than two points variance.

AFPC/DPPB noted the contention that the applicant would not be promoted by the SSB if he ties a nonselect benchmark record with the highest of all the scores because his score did not exceed all of the non-select benchmark records' scores.  They did not agree.  AFPC/DPPB stated that because the benchmark records are very similar in quality, it is not unusual to have some inversion in the benchmark order of merit created by the SSB.  Whenever the inversion is of a nature that a nonselect benchmark record received the highest score by the SSB and the consideree’s record received the same or even second highest score, the nonselect benchmark record and the consideree’s record are returned to the board members for rescoring.  If the consideree’s record scores higher than the nonselect benchmark, the consideree will be a select.  SSB members are not informed which records are benchmark records.

AFPC/DPPB also noted the allegation that the fully qualified determination is neither logically or mathematically sound.  They again did not agree.  AFPC/DPPB indicated that after the board resolves the “gray zone,” all board members become aware of the lowest select and the highest nonselect and, as required by law, must determine if the lowest select is fully qualified for promotion.  The board understands all records scoring higher than the lowest select are also fully qualified.

A complete copy of the AFPC/DPPB evaluation, with attachment, is at Exhibit C.

AFPC/DPPPO recommended denial.  They noted that the applicant was involuntarily separated from the Air Force in Feb 92 in the grade of captain after two nonselections for promotion to the grade of major.  However, it was later determined that his nonselections were erroneous because his record was flawed at the time.  Hence, his record was considered by an SSB on 18 Nov 96 for the CY89A Central Major Selection Board.  He was selected for promotion to the grade of major, with a date of rank of 1 Aug 91, and was reinstated to active duty in Aug 97.  AFPC/DPPPO further noted that the applicant was considered and nonselected for promotion to the grade of lieutenant colonel by SSBs for the CY94A, CY96C, and CY97C Central Lieutenant Colonel Selection Boards.  He was also considered and nonselected for promotion to the grade of lieutenant colonel by the CY98B and CY99A Central Lieutenant Colonel Selection Boards.

AFPC/DPPPO indicated that they concur with the findings in the AFPC/DPPB's advisory.  According to AFPC/DPPPO, the Air Force has many officers who, for a variety of reasons, do not follow a typical career path.  Many of these officers progress and do very well when meeting promotion boards.  Promoting the applicant outright would be an injustice to other officers who have had a break in service and are not afforded direct promotion.  They believe the applicant received fair consideration for promotion to lieutenant colonel by the three SSBs and the two CSBs.  Promoting the applicant outright would be an injustice to other officers who have had a break in service and are not afforded direct promotion.  His situation is no more unique than those officers recalled to active duty with breaks in service, interservice transfers, and transfers from the Air Force Reserve or Guard.  They, too, have incomplete records and lack the breadth and depth that their peers have.  Granting him a direct promotion to lieutenant colonel would ignore the basic principle of the promotion system--promotions are based on demonstrated potential based on the record of performance.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit D.

AFPC/JA recommended denial.  They noted the argument that the applicant was forced to compete unfairly at the three SSBs conducted in 1998 because he was unable to compile or establish a record in his new grade of major before meeting these boards, and agreed with the assessment that meeting a lieutenant colonel board without any record of service in the form of evaluation reports in the grade of major certainly made the applicant less competitive and more likely to be nonselected.  Indeed, it is not unusual for this Board to set aside in advance up to two nonselections by central boards to the next promotion grade following a member’s retroactive promotion—for the very purpose of assuring that the member will have at least two performance reports in the new grade in order to compete fairly for promotion to the next grade.  At first blush, it might seem logical here to conclude that the SSB considerations that this applicant received were unfair, and thereupon conclude that the Board should award new considerations utilizing his actual records of performance as a major.  However, it is their belief that it was the applicant who decided to request these SSBs right away and, having been apprised of the likelihood of what would happen, decided to go ahead immediately with these boards rather than wait to construct a record as a major.  Although the Air Force Personnel Center historical files no longer contain documentary evidence that the applicant was apprised of the risk of requesting these boards but nevertheless elected to do so, the normal practice at that time was that such notice and the member’s request be recorded and made a part of the file.  In AFPC/JA's opinion, in the absence of evidence to the contrary, the Air Force is entitled to rely on the presumption of regularity that the personnel officials in question proceeded in this case in accordance with that standard procedure.

AFPC/JA indicated that even if one were to assume that the applicant having met the SSBs without an adequate record was unfair and through no fault of his own, it would not follow that he should be afforded the same relief as an officer reinstated from the TDRL; i.e., advancement to the next higher grade.  That remedy is specifically provided for by Congress solely under those specific circumstances; Congress has made no such requirement for a promotion situation like that in the instant case.  In fact, Congress has made clear its intention that for errors like that alleged here, the appropriate remedy would be the convening of new SSBs which would now include the officer’s performance reports in the grade of major.  As they have stated on previous occasions, both Congress and DoD have made clear their intent that errors ultimately affecting promotion should be resolved through the use of special selection boards, and Air Force policy mirrors that position.  In that regard, where many good officers are competing for a limited number of promotions, only the best officers can be promoted.  Without access to all the competing records and an appreciation of what those records mean—an appreciation gained from years of military experience— they continue to believe the practice of sending cases to SSBs is the fairest and best practice.  For the past (and hopefully in the future) the AFBCMR will consider direct promotion only in the most extraordinary circumstances where SSB consideration has been deemed to be totally unworkable.  In AFPC/JA's view, the applicant’s case does not fall into that category.  Thus, as a consequence, they would recommend that the most the Board should do if it were to determine that the applicant was unfairly prejudiced by his having met the SSBs in question without having first obtained a record of performance as a major, is award new SSB consideration and not a direct promotion.  They reiterate, however, their belief that the applicant was not the victim of an unfair practice on the part of the Air Force, and that whatever “unfairness” he suffered as a result of meeting the SSBs when he did was solely due to his own actions.

AFPC/JA noted the allegation that the SSBs that considered the applicant for promotion were conducted illegally.  In particular, he alleges that the methodology used by the Air Force in conducting SSBs (that a member’s score must exceed that of all the nonselect benchmarks and equal or exceed the score of at least one of the select benchmarks) precluded fair consideration and violated the governing statute.  In support of this proposition, statistics were cited showing that the number of officers with definitely promote recommendations that are selected for promotion by SSBs is significantly lower than those with definitely promote recommendations considered by CSBs.

According to AFPC/JA, the precise same arguments offered by the applicant’s counsel in this case were offered in a recent lawsuit where the plaintiff was represented by the same attorney, and the arguments were firmly rejected by the United States Claims Court.  In Haselrig v. United States, No. 99-908C, 2002 U.S. Claims Lexis 183 (July 31, 2002), the United States Court of Federal Claims determined that the procedures utilized by the Air Force in conducting SSBs constitute a permissible interpretation of the statute and a proper means to carry out the statutory requirements.  In particular, the Court determined that the methodology used by the Air Force in selecting benchmark records and the scoring requirements as objected to by this applicant’s counsel, were all proper under both the statute, 10 U.S.C. 628, and the applicable Air Force regulation, AFI 36-250 1, paragraph 6.

With respect to the argument that the statistical data suggests unfairness on the part of the SSBs, the Court determined that “while statistical data can raise the question of whether or not SSB procedures may be flawed, the data itself is not dispositive of the issue.  Plaintiff must identify and establish a specific flaw in the procedures the SSBs used to reach its decision in order for the court to find the SSB procedures are inconsistent with 10 U.S.C. Section 628 and AFI 36-2501, paragraph 6.1.” Haselrig v. United States, 2002 U.S. Claims Lexis 183, at page 17. The Court refused to make such a determination, having decided that the issue was nonjusticiable.  Moreover, the Court determined that the statistical data presented by the plaintiff was not conclusive evidence that the Air Force’s SSB procedure failed to make a “reasonable determination” of whether the plaintiff would have been promoted by the original board or failed to “replicate” the procedures of the original selection board “to the maximum extent possible.”  In concluding that the Air Force’s SSB procedures were lawful, the Court noted that it was not its role to instruct an executive agency on how it might better implement congressional direction, only to determine whether or not the Air Force’s procedure as actually implemented was a permissible interpretation of both statutory and regulatory mandates.  It determined that it was.  Suffice it to say, the Haselrig holding is dispositive of the SSB issue in this case, as this applicant’s counsel has made the exact same arguments here that were made in that case.  The Court clearly has rejected them, and the Board should do so as well.

Finally, AFPC/JA noted the argument that challenged the Air Force CSB procedures as being illegal, contending that the statutory mandates in 10 U.S.C. 616 and 617 cannot be met by the panel system used for Air Force promotion boards.  In support of this argument, a declaration of a retired colonel who once sat on a promotion board in 1991 was provided.  This retired member states that he was essentially unaware of what was going on and did not know what he was signing when he signed the board report.  With respect to this declaration, AFPC/JA pointed out that they seriously question the recollection of an officer with respect to the details of a promotion board conducted some 11 years ago.  Moreover, it hardly seems relevant what this particular officer remembers about a promotion board that did not consider the applicant in the instant case. Applicant’s boards were conducted in 1998 and 1999, and the observations of a member of a board that was held seven years previous—even if accurate—bear absolutely no relevance to the applicant’s boards.

Moreover, the Courts have clearly spoken to the legality of the Air Force’s panel system for conducting promotion boards.  In Small v. United States, 158 F.3d 57 (Fed. Cir. 1998), the Court upheld the validity of the Air Force promotion system and concluded that the Air Force panel system complies with 10 U.S.C. 616 and 617.  The Court specifically noted: “a review of a selected number of individuals by sub-panels who use common and identifiable criteria is efficacious and equitable means to establish the final rankings that are in fact approved by a majority of the members of the board.”  Both the United States Court of Federal Claims and the United States Court of Appeals for the Federal Circuit which upheld the lower court’s ruling in Small, contrary to the applicant’s counsel’s contentions, were both fully aware of the Air Force’s board procedures (which were the same for both the Small and this applicant’s boards) when they made their decisions; those procedures were fully briefed and discussed during oral argument in the Small litigation.  The applicant’s attorney’s opinion that “the evidence” proves that the procedures used in the applicant’s boards did not comply with either the law or the courts totally ignores the evidence of record and is utterly without merit.

For the reasons stated above, it was AFPC/JA's opinion that with respect to the first issue raised by the applicant challenging his erroneous nonselections on the basis of an unfairly abbreviated record, the Board should determine that this request is untimely and should be barred under the equitable doctrine of laches.  If the Board determines to consider this issue on the merits notwithstanding their recommendation, then, for the reasons explained above, they believe the Board should determine that the applicant has not proven an error or injustice warranting relief.  Moreover, it is their opinion that the applicant has failed to prove any error or injustice with respect to the procedures used by either Air Force CSBs or SSBs in considering this or any other applicant.

A complete copy of the AFPC/JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 20 Sep 02 for review and response (Exhibit F).  On 21 Oct 02, counsel requested that the applicant's appeal be temporarily withdrawn (Exhibit G).

Counsel subsequently reviewed the advisory opinions and furnished a detailed response indicating, in part, that the AFPC/JA's arguments are red herrings because the timing of the applicant's SSBs had absolutely no bearing on the prejudicial injustice that AFPC/JA admits the applicant suffered.  That prejudice derived from the length of time that it took to rectify the error that undermined his 1992 separation, not from any meaningless option that the applicant was allegedly afforded.  The applicant's 1999 separation was erroneous because his promotion passovers to the grade of lieutenant colonel were unjustly based upon an empty record that, through no fault of his own, made him "less competitive and more likely to be nonselected."

Counsel's complete response, with attachment (letter from applicant), 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 error or injustice warranting corrective action regarding the applicant's request for direct promotion to the grade of lieutenant colonel.

	a.  We agree with AFPC/JA that it is not unusual for this Board to set aside in advance up to two nonselections by central boards to the next promotion grade following a member’s retroactive promotion for the very purpose of assuring that the member will have at least two performance reports in the new grade in order to compete fairly for promotion to the next grade.  However, we find no evidence to support the assertion by the Staff Judge Advocate that it was the applicant who decided to request these SSBs right away and, having been apprised of the likelihood of what would happen, decided to go ahead immediately with these boards rather than wait to construct a record as a major.  Further, we find no evidence that the applicant insisted on being considered for promotion to lieutenant colonel before he had an opportunity to establish a record as a major.  To the contrary, we find that the Air Force advised him that he would be considered for promotion for those boards he missed while he was not on active duty knowing full well that his chances of selection would be diminished because of a lack of performance as a major.  More importantly, however, as asserted by counsel, even if the applicant had been afforded the option to delay his SSBs for lieutenant colonel, exercising it would have been utterly meaningless.  The 1998 SSBs considered the applicant for retroactive promotions by the 1994, 1996 and 1997 boards that he did not meet because he was not on active duty at those times.  Therefore, none of the records that he would have accumulated after his 1997 reinstatement would have been available to any SSBs considering his record as it would have appeared before the original selection boards.  In view of the foregoing and since the original panel of this Board did not provide a provision to remove his nonselections for lieutenant colonel until he had sufficient time to build an adequate record of performance in the grade of major, it is self-evident the applicant cannot compete fairly for promotion.

		b.  The Board has previously asserted in cases of a similar nature that in order to justify a Secretarial promotion, there must be evidence the officer has suffered an error or an injustice, and there is persuasive evidence the officer's record cannot be fairly considered by a duly constituted selection board.  After our further analysis of this case, we believe there is every reason to conclude that the applicant's case is so exceptional an SSB cannot reach a fair decision, and the extraordinary solution of a directed promotion is warranted.  Our conclusion in this matter is not based on any illegalities in the CSB or SSB procedures.  In fact, we believe that SSBs have served the Air Force well and are fundamentally fair and equitable.  Notwithstanding this, it is our view that there are cases where it is impossible for an SSB to restore equity.  This is one of those rare cases.  As a result of the applicant's retroactive promotion to the grade of major and ultimate reinstatement after over five years, he was considered for promotion to the grade of lieutenant colonel by SSBs for the CY94A, CY96C, and CY97C boards with no record of performance in the grade of major.  When he was considered by CSBs for the CY98B and CY99A boards, he had one and two OPRs, respectively, in his record with combined rating periods of less than a year.  Since it is reasonable to assume that most individuals competing for promotion, on average, have at least three times that many OPRs, in our opinion, this precluded a fair comparison of the applicant's record with the other promotion eligibles.

	c.  While we can never be certain, we believe the evidence indicates that a directed promotion to lieutenant colonel is fairer, both to the applicant and the Air Force, than ratifying his nonselections.  Since, in our view, there is no way for the system as presently constituted to restore equity, it is imperative for this Board to impose the extraordinary solution of direct promotion--it is the only possible way to rectify the injustice in this particular case.  Accordingly, we recommend the applicant's direct promotion to the grade of lieutenant colonel.  In arriving at our decision to recommend the applicant's promotion, we are keenly aware the courts have held that the Secretary and his Boards have an abiding moral sanction to determine, insofar as possible, the true nature of the alleged injustice and to take steps to grant thorough and fitting relief.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

	a.  He was selected for promotion to the grade of lieutenant colonel by the Calendar Year 1994A Lieutenant Colonel Central Selection Board, and that action be initiated to obtain Senate confirmation.

	b.  Upon Senate confirmation, he be promoted to the grade of lieutenant colonel effective and with date of rank as though he had been selected by the Calendar Year 1994A Lieutenant Colonel Central Selection Board.

	c.  He was relieved from active duty on 31 Aug 99 and retired, effective 1 Sep 99, in the grade of lieutenant colonel, rather than in the grade of major.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2002-00938 in Executive Session on 22 Jul 03, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 15 Feb 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPB, dated 10 Apr 02, w/atch.
     Exhibit D.  Letter, AFPC/DPPPO, dated 2 Aug 02.
     Exhibit E.  Letter, AFPC/JA, dated 16 Sep 02.
     Exhibit F.  Letter, SAF/MRBR, dated 20 Sep 02.
     Exhibit G.  Electronic Mail, dated 21 Oct 02.
     Exhibit H.  Letter, AFBCMR, dated 31 Oct 02.
     Exhibit I.  Letter, counsel, dated 21 Apr 03, w/atch.

                                   

AFBCMR BC-2002-00938

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 , be corrected to show that:

		a.   He was selected for promotion to the grade of lieutenant colonel by the Calendar Year 1994A Lieutenant Colonel Central Selection Board, and that action be initiated to obtain Senate confirmation.

		b.   Upon Senate confirmation, he be promoted to the grade of lieutenant colonel effective and with date of rank as though he had been selected by the Calendar Year 1994A Lieutenant Colonel Central Selection Board.

		c.   He was relieved from active duty on 31 Aug 99 and retired, effective 1 Sep 99, in the grade of lieutenant colonel, rather than in the grade of major.