RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02093
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be promoted to the grade of lieutenant colonel.

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APPLICANT CONTENDS THAT:

As a Reserve officer, he was unfairly discriminated against by the Calendar Year 2001B (CY01B) Central Lieutenant Colonel Selection Board.

Because he was considered by the CY01B Central Lieutenant Colonel Selection Board with an erroneous record (missing Officer Performance Report (OPR), he was granted Special Selection Board (SSB) consideration.  He is awaiting the results of the SSB but is not hopeful because he believes that the problem of Reserve discrimination is a systemic one affecting all boards.

In support of his appeal, the applicant provided an expanded statement, copies of his CY01B PRF, a letter from his senior rater, his letters to the board, his Freedom of Information Act requests (FOIA), a electronic mail (e-mail) concerning the Intra-Component Transfer Program, and two supportive statements from his former supervisor and commander.

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

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving on active duty in the grade of major, having been promoted to that grade on 1 May 96.  His Total Active Federal Military Service Date (TAFMSD) and Total Active Commissioned Service Date (TACSD) is 8 Feb 86.

Applicant's OPR profile since 1990 follows:

	PERIOD ENDING	EVALUATION

	18 Apr 90			Meets Standards
	19 Apr 91			Meets Standards
	29 Jan 92			Meets Standards
	14 Jul 92			Meets Standards
	14 Jul 93			Meets Standards
	13 Apr 94			Meets Standards
	13 Apr 95			Meets Standards
	13 Apr 96			Meets Standards
	13 Apr 97			Meets Standards
	13 Apr 98			Meets Standards
	13 Apr 99			Meets Standards
	14 Mar 00			Meets Standards
	30 May 01			No Report Available
  #   4 Jan 01			Meets Standards

# Top Report at the time he was considered and nonselected for promotion to the grade of lieutenant colonel by the CY01B Lieutenant Colonel Board.

On 6 May 02, the applicant was considered and nonselected for promotion to the grade of lieutenant colonel by an SSB for the CY01B Lieutenant Colonel Board.

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AIR FORCE EVALUATION:

AFPC/DPPB recommended denial.  They noted that the applicant had one nonselection for promotion to the grade of lieutenant colonel by the CY01B Lieutenant Colonel Board.  On 6 May 02, he was also considered for promotion to the grade of lieutenant colonel by an SSB for the CY01B Lieutenant Colonel Board due to a missing OPR from his officer selection record (OSR).

AFPC/DPPB indicated that they do not agree with the applicant that he was not selected for promotion to the grade of lieutenant colonel because the CY01B discriminated against Reserve officers.  The board members, under oath, were charged to give each record a fair and equitable evaluation using the whole person concept.  They are confident the board members complied with that charge.

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

AFPC/DPPPO recommended denial indicating that the AFPC/DPPB advisory addressed the applicant’s contention of discrimination against Reserve officers.  However, their role is not to substantiate whether discrimination occurred, but rather to review the evidence provided and determine whether reports were rendered and processes were followed fairly, accurately, and in accordance with the applicable instruction.  The applicant has not provided conclusive evidence to show his record contained comments and recommendations that were not rendered in good faith by evaluators based on the knowledge available at the time.  Therefore, there was no basis for granting direct promotion.

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

AFPC/JA recommended denial indicating that it is axiomatic that the applicant bears the burden of proof before the AFBCMR that an error or injustice has occurred requiring a correction of records.  In this case, the applicant has offered only his opinion that the reason that he was nonselected by the central board was his status as a Reservist, and that such a criterion‑‑if utilized in whole or in part--denied him fair and equal treatment as mandated by the law and governing Air Force directives.  He has offered no evidence to support that opinion.  In the absence of proof to the contrary, the selection board members are presumed to have properly discharged their duties in good faith, without prejudice, and in accordance with their instructions (which include the obligation of fair and equitable consideration of all candidates) and applicable regulations.  As a consequence, it is AFPC/JA’s opinion that the applicant has failed to provide sufficient evidence of probable error or injustice warranting relief.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a response indicating that he did not wish to restate the information he presented in his original appeal because he feels that he has presented clear and compelling evidence that he was not promoted due to Reserve discrimination.  He requested additional evidence from AFPC but he was denied the information.  In his view, the information would have strengthened his case but is not necessary to prove that the CY01B board engaged in discriminatory behavior against Reserve component officers.  He contends that his situation is one where the SSB process is unworkable, and that the only way he could receive fair consideration by an SSB, is by a Reserve officer promotion board.  If a Reserve component SSB is not a viable option, then the only non-discriminatory alternative is direct promotion by the AFBCMR.

Applicant’s complete response is at Exhibit G.

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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 warranting corrective action concerning the applicant’s request that he be promoted to the grade of lieutenant colonel as though selected by the CY01B Lieutenant Colonel Board.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation provided in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility (OPR).  We note that officers compete for promotion under the whole person concept whereby many factors are carefully assessed by selection boards.  In addition, an officer may be qualified, but in the judgment of a selection board--vested with discretionary authority to make the selections--may not be the best qualified of those available for the limited number of promotion vacancies.  Promotion to the grade of lieutenant colonel is very competitive and the applicant has not provided persuasive evidence that he was not selected for promotion to the grade of lieutenant colonel because he was the victim of discrimination.  We understand the applicant’s disappointment in not being selected for promotion.  However, based on the documentation before us, we find no basis to promote the applicant through the correction of records process.  We did also note that he was given SSB consideration for promotion to the grade of lieutenant colonel by the CY01B board as a result of a missing OPR from his officer selection record.  However, he was not selected for promotion.  We are of the opinion that consideration by the SSB was proper and fitting relief.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the OPRs and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application

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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number 02-02093 in Executive Session on 19 Nov 02, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Jun 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPB, dated 12 Jul 02.
    Exhibit D.  Letter, AFPC/DPPPO, dated 15 Aug 02.
    Exhibit E.  Letter, AFPC/JA, dated 21 Aug 02.
    Exhibit F.  Letter, SAF/MRBR, dated 23 Aug 02.
    Exhibit G.  Letter, applicant, dated 6 Sep 02.

                                   Panel Chair