RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03350
		INDEX CODE:  131.01
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be considered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 1997E (CY97E) Central Lieutenant Colonel Selection Board.

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APPLICANT CONTENDS THAT:

Based on an earlier AFBCMR application he was considered by SSB for promotion to lieutenant colonel and was not selected.  The primary error and injustice that occurred in his nonselection was the fact that his former senior rater was a voting member of the SSB.  In his earlier case, his senior rater failed to include Professional Military Education (PME) recommendations on the Promotion Recommendation Forms (PRFs) for all majors and lieutenant colonels meeting In-the-Primary Zone (IPZ) boards in the fall of 1997.  The senior rater corrected the administrative error and all the officers affected received SSB consideration for promotion.  The other two officers considered for promotion to lieutenant colonel by SSB were selected for promotion prior to his SSB being approved.  The senior rater was aware that they had been selected prior to serving on his SSB.  Accordingly, to the extent that either of their records were used as comparatives at his SSB, the former senior rater knew that the other two officers were not the consideree who had been granted that particular SSB.  His knowledge of this "inside information" that was not available to the other board members, deprived him of a fair and impartial SSB panel and constituted an administrative error and injustice.  His presence as a voting member violated the board instructions which state "Each of you...is responsible to maintain the integrity and independence of this selection board, and to foster the careful consideration, without prejudice or partiality, of all eligible officers."  Upon seeing the records of the other two officers and along with his, he should have recused himself or at least sought the advice from the board president.  

In addition, the board instructions contain an illegal and constitutionally impermissible instruction that gives unfair advantage to women and minorities.  Applicant is referring to the case of Berkley, et al., vs. United States.  The Court in this case determined that this instruction is unconstitutional.  

In support of his request, applicant provided a copy of the board member list, his original PRF and corrected PRF, and a copy of the board member instructions.  Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

While serving on active duty, he was considered and not selected for promotion to lieutenant colonel by the CY97B, CY97E, and CY99A selection boards.  He was separated from active duty on 25 Oct 99 and is currently serving in the Air Force Reserves in the grade of lieutenant colonel, having assumed that grade with a date of rank of 1 Oct 01.  He currently has 23 years of satisfactory Federal service.  

On 19 Jun 98, applicant submitted an appeal to the Board contending that there were numerous errors on his Officer Selection Brief (OSB).  His records were corrected and on 19 May 99, he was provided SSB consideration for the CY97B and CY97E lieutenant colonel selection boards and was not selected. 

Subsequent to his SSB nonselection, he submitted an additional appeal to the Board requesting direct promotion to the grade of lieutenant colonel, contending that the composition of the board that originally considered him violated statutory provisions by failing to consist of five or more voting members on the active duty list and contending that an Officer Performance Report in his record had a typewritten notation to advise readers that he was previously promoted through the SSB process.  His request was denied by the Board.  

In another appeal to the Board the applicant provided a corrected PRF and requested that he be granted SSB consideration for the CY97E lieutenant colonel selection board.  He contended that his senior rater inadvertently omitted PME attendance on the PRF. The Board granted his request and he was considered and not selected by an SSB on 3 Dec 01.

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AIR FORCE EVALUATION:

AFPC/DPPB recommends denial.  DPPB states that the officer was qualified to serve on the SSB and was administered the oath prescribed by 10 U.S.C. and took no action to excuse himself from the board.  In addition, DPPB states that the verbiage in the instructions to his SSB has been modified and is not the same as the verbiage in the Berkley case.  The DPPB evaluation is at Exhibit C.

AFPC/DPPPO recommends denial.  DPPPO states that applicant has provided no proof to support his claim that the two other officers in his year group were benchmark records considered by the board.  Even if this were true, he failed to establish how he was prejudiced in any way.  The JAG career field is small and it is not unusual for one or more board members at any given SSB to know all or some of the considerees.  This has never been considered as a disqualifying factor.  Moreover, the board members are required to take an oath and are told that if at any time they believe they cannot in good conscience perform their duties as a member of the board without prejudice of partiality to request relief from their duty.  

Beginning in 1998, the verbiage of the Memorandum of Instructions provided to selection boards and SSBs was changed to delete the cited instruction.  Therefore, his request does not fall under the Berkley decision.  The DPPPO evaluation is at Exhibit D.

USAF/JAG recommends denial.  JAG states that it was not a statutory violation for the applicant's former senior rater to serve as an SSB member.  In fact, as a practical matter, it isn't unusual to have senior raters, regardless of competitive category, serve as board members.  Given the relatively small size of the JAG competitive category the senior raters seniority among 0-6 judge advocates, it was not only statutorily permissible, but was entirely appropriate for him to serve as an SSB member.  The applicant's inference that his knowledge of the applicant's identity as well and facts and circumstances of his case led to his nonselection is pure speculation, unsupported by any evidence.  

The revised Memorandum of Instruction was presented to the applicant's SSB and did not create either a constitutionally objectionable classification or benefits or burdens for competitors in the board process.  He has already received the benefit of the Berkley case by having been granted an SSB that was conducted under the auspices of the revised instruction.  The JAG evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In the applicant's responds he reiterated his contentions and added that the Air Force usually employs the "Consecutive Board" rule when assigning senior officers to sit as voting members of promotion boards.  This means that the same senior officer may not sit on two consecutive promotion boards considering the records of any given consideree.  In the same spirit of the "Consecutive Board" rule, his senior rater should have recused himself.  Although he did not sit on his previous board, he was so intimately involved in his case that he had special background knowledge that was not available, and rightly should not have been available, to the other board members.  His complete submission 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 took notice of the applicant's complete submission in judging the merits of the case.  However, we are not persuaded by his assertion that the presence of his former senior rater as a voting member of the SSB panel, led to his denial of a fair opportunity to compete successfully for promotion.  In addition, we note that the verbiage of the Memorandum of Instructions was changed in 1998, prior to his consideration for promotion by SSB on 19 May 99.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, 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 issue(s) 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 Docket Number BC-2002-03350 in Executive Session on 6 May 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPB, dated 23 Dec 02.
    Exhibit D.  Letter, AFPC/DPPPO, dated 16 Jan 03.
    Exhibit E.  Letter, USAF/JAG, dated 31 Jan 03.
    Exhibit F.  Letter, SAF/MRBR, dated 7 Feb 03.
    Exhibit G.  Letter, Applicant, dated 3 Mar 03.