RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02531
					        (CASE 2)
		INDEX CODE:  131.05

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His date of rank to lieutenant colonel be adjusted as if he had been selected and promoted by the CY99A (19 Apr 99) Central Lieutenant Colonel Selection Board instead of the CY99B (30 Nov 99) Central Lieutenant Colonel Selection Board.
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APPLICANT CONTENDS THAT:

The Definitely Promote (DP) recommendation he received on his Promotion Recommendation Form (PRF) for the P0599A Lieutenant Colonel Promotion Board was unfairly and arbitrarily discounted by the Special Selection Board (SSB) that considered him for promotion to lieutenant colonel following his nonselection for promotion by the P0599A selection board.

In support of his request, applicant submits a personal statement and a copy of his P0599A PRF.  In addition, he submits a copy of an AFBCMR letter concerning his previous case (99-01992), dated 29 Feb 02, with the Directive and his DD Form 149, and a copy of an SAF/MRB letter, dated 25 Jun 02.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 8 May 83.  He is currently serving on active duty in the grade of lieutenant colonel, with an effective date and date of rank of 1 Feb 01.

Applicant's OPR profile for the last 8 reporting periods follows:

		Period Ending	Evaluation

		    1 Dec 94	Meets Standards (MS) - grade of Major
		    1 Dec 95	    MS
		    1 Dec 96	    MS
		    1 Jun 97	    MS
		#  21 Apr 98	    MS
		## 21 Apr 99	    MS
		   21 Apr 00	    MS
		   21 Apr 01	    MS - grade of Lieutenant Colonel
		   21 Apr 02	    MS

# Top report at the time he was considered below-the-promotion zone (BPZ) and nonselected for promotion to lieutenant colonel by the CY99A (P0599A) Central Lieutenant Colonel Selection Board, which convened on 19 Apr 99.

## Top report at the time he was considered in-the-promotion zone (IPZ) and selected for promotion to lieutenant colonel by the CY99B (P0599B) Central Lieutenant Colonel Selection Board, which convened on 30 Nov 99.

On 8 Feb 00, the AFBCMR considered and recommended approval of the applicant's request that he be reconsidered for promotion to the grade of lieutenant colonel by an SSB for the CY99A (19 Apr 99) Lieutenant Colonel Selection Board, with inclusion of the citations for the Joint Service Commendation Medal (JSCM) and the Meritorious Service Medal (MSM) First Oak Leaf Cluster (1OLC) in his officer selection record (OSR).  On 29 Feb 00, the Deputy for Air Force Review Boards directed the applicant’s records be corrected as stated and that he be considered for promotion to the grade of lieutenant colonel by an SSB for the CY99A Lieutenant Colonel Selection Board and any subsequent boards in which the corrections were not a matter of record.  A copy of the Record of Proceedings (ROP), Docket Number 99‑01992, is at Exhibit B.

The applicant currently has an established date of separation (DOS) of 30 Jun 03.

Provided for the Board’s information is a copy of a SAF/MI memorandum, dated 20 Dec 99, concerning a similar assertion (Exhibit F).
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AIR FORCE EVALUATION:

HQ AFPC/DPPPO, recommends the applicant’s request for direct promotion be denied.  DPPPO indicated that the applicant was considered and nonselected for promotion to the grade of lieutenant colonel by the 15 May 00 SSB for the P0599A (BPZ) selection board due to two missing citations from his OSR when he met the board.  DPPPO stated that the applicant has not provided conclusive evidence to show his record contained comments and recommendations not rendered in good faith by evaluators based on the knowledge available at the time.  Therefore, there is no basis for granting direct promotion.  Both Congress and DoD have made clear their intent that when errors are perceived to ultimately affect promotion, they should be addressed and resolved through the use of Special Selection Boards (SSBs).  Without access to all the competing records and an appreciation of their content, DPPPO continues to believe the practice of sending cases to SSBs is the fairest and best practice.  The applicant’s record was found in error, corrected and subsequently met an SSB, but he was not selected for promotion.  His case clearly does not warrant direct promotion, nor does it warrant further SSB consideration.  Other than his own opinions, the applicant has provided no substantiation to his allegations.  The HQ AFPC/DPPPO evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and indicated that the advisory writer completely ignores the injustice that he has alleged:  that his SSB unfairly discounted his Definitely Promote (DP) recommendation based on a long-standing bias and practice of assuming that DPs at SSBs are gratuitous “freebies” not to be accorded much, if any, weight.  It was the advisory writer’s predecessor who used the term “freebie DP” in describing how DPs are viewed by SSBs before the assembled AFBCMR at the board’s annual seminar.  He has provided evidence that his SSB unfairly discounted his DP by describing the presentation made by the advisory writer’s predecessor (Lt Col C---) before the assembled board.  The advisory writer does not refute his statements describing Lt Col C---’s presentation to the board.  Nor does he even discuss the subject of her presentation.  Tacitly, by failing to deny, he acknowledges the truth about “freebie DPs.”  The advisory writer asks the Board to blindly accept that all is well with the manner in which SSBs are conducted in the apparent hope that the board will not see fit to render a decision in his case which should cause his organization to carefully review how SSBs are conducted and, in particular, what SSB members are told about how they should view DPs.  In his case, the Board should do this by adjusting his date of rank as though selected by the P0599A central selection board.  If he had been promoted earlier, he would be eligible to retire in grade as a Lt Col at the completion of his unaccompanied tour in Korea.  According to current law, he must have three years’ time-in-grade.  The applicant’s complete submission is at Exhibit E.
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APPLICANT'S REVIEW OF ADDITIONAL COMMUNICATION:

The applicant was provided a copy of a 20 Dec 99 SAF/MI memorandum for review (Exhibit F).

The applicant reviewed the additional SAF/MI memorandum and noted that the prior case is very similar to his application.  He indicated that this prior case is significant for two important reasons: (1) It anecdotally shows that many officers with DP recommendations are treated unfairly at SSBs.  (2) It shows that members of the Board who have confronted this issue in the past have recognized the inherent injustice in a system which would promote 99.2% of officers with DP recommendations unless, through no fault of their own, they have to take their DP recommendations before an SSB, in which case the promotion rate is dismally low notwithstanding the outstanding records of the officers in question.  SAF/MI dismisses the “freebie DP” comment as of no corroborative value because it did not come from the office of primary responsibility (OPR) for the officer promotion process.  His “freebie DP” comment does, in fact, come from the OPR for the officer promotion process.  In the final analysis of his application, it is clear that the statistical data and the acknowledgements from the officer promotion process OPR of the “freebie DP” problem show that the SSB process is fundamentally unfair.  He met an SSB with a DP recommendation and did not have a fair chance.  It should not matter that he was competing below-the-zone, the process was unfair.  He was entitled, at least, to a fair SSB; however, he did not get one.  He therefore asks that the Board grant the requested relief.  The applicant’s complete response is at Exhibit G.

In further review of the SAF/MI memorandum, he draws the Board’s attention to the opinion of the United States Court of Federal Claims in the case of another individual (Mr. H---), filed 31 Jul 02, which addresses a claim very similar to his.  In assessing Mr. H--‘s claim, the Court stated that “while statistical data can raise the question of whether or not SSB procedures may be flawed, the data itself is not dispositive on the issue.”  As the Court later opines, “Plaintiff must identify and establish a specific flaw in the procedures that SSBs used to reach its decision in order for the court to find the SSB procedures are inconsistent with 10 USC, Section 628, and AFI 36-2501, paragraph 6.1.”  His case represents more than statistics.  In his case, he has presented an admission, by the former chief of the appeals and SSB branch at HQ AFPC, that SSBs unfairly discounted DPs on the theory that they were gratuitous and not competitively earned.  She also referred to these DPs as “freebie DPs” before the entire assembled AFBCMR in acknowledging the problem of which he complains.  This admission is evidence in support of his case which allows more than mere speculation based on statistics.  It is evidence that explains the statistics and gives them meaning.  He believes this is why SAF/MI took such great pains to work around AFPC/JA’s “troublesome” use of the “freebie DP” term, dismissing it as not of legal importance because AFPC/JA was not the office of primary responsibility for promotions.  He urges the Board to recognize the injustice which took place in his case and the cases of many fine officers who met SSBs with DPs.  The applicant’s complete submission, with attachment, 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.  We have carefully considered the applicant’s complete submission in judging the merits of the case.  The applicant’s numerous assertions concerning the legality of the promotion recommendation process and the legality of the Special Selection Board (SSB) process are duly noted.  However, we do not believe the evidence substantiates that he was not fairly and equitably considered for promotion to lieutenant colonel by an SSB for the CY99A selection board.  We can understand his disappointment in not being selected; however, we are unpersuaded that he should be promoted to the grade of lieutenant colonel through the correction of records process.  Other than speculation based on the unfortunate statement concerning Definitely Promote (DP) recommendations, the applicant has submitted no corroborative evidence to show that he did not receive a full and fair consideration for promotion by the duly constituted SSB.  Nor has he provided any evidence to indicate that the SSB members did not perform their sworn duty and arbitrarily discounted his DP recommendation.  The evidence presented does not convince us that the applicant’s consideration for promotion was contrary to the pertinent provisions of the governing instruction, which implements the law.  In the selection process, officers compete for promotion under the whole person concept whereby Performance Recommendation Forms (PRFs) are but one of many factors assessed by selection boards.  An officer may be qualified but, in the judgment of a duly constituted selection board, vested with discretionary authority to score the records, may not be the best of those officers determined to be better qualified within the constraints of the promotion quota.  Since promotion quotas diminish significantly as officers compete for higher grades, the particular grade at issue is also a consideration.  We find no evidence that the applicant did not compete fairly with his peers, the previous AFBCMR corrective action notwithstanding.  Based on the above and in view of the fierce competition for promotion to the grade of lieutenant colonel, placing the corrected record before an SSB was, in the Board’s opinion, the appropriate course of action in this case.  In view of the foregoing and in the absence of corroborative evidence of impropriety in the SSB process, we find no compelling basis to recommend granting the relief sought in this application.
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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 this application in Executive Session on 27 Mar 03, under the provisions of AFI 36‑2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2002-02531.

   Exhibit A.  DD Form 149, dated 29 Jul 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPO, dated 21 Nov 02.
   Exhibit D.  Letter, SAF/MRBR, dated 27 Nov 02.
   Exhibit E.  Letter from Applicant, dated 11 Dec 02.
   Exhibit F.  Letter, AFBCMR, dated 25 Feb 03, w/atch.
   Exhibit G.  Letters from Applicant, dated 3 Mar 03, w/atch,
			and 12 Mar 03, w/atch.