RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-00941
					INDEX CODE 131.01
	 			COUNSEL:  None

					HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

1.	The Officer Selection Brief (OSB) for the Calendar Year 2001B (CY01B) Lieutenant Colonel (LTC) Central Selection Board be amended to reflect his joint duty assignments (JDA) at the Defense Intelligence Agency (DIA) during 6 Jan 91 - 6 May 93 and 7 May 93 - 16 Jun 95 in the Joint Duty History section, and an effective date/duty title of “16 Jul 01/Staff Judge Advocate” rather than “10 Sep 01/Deputy Staff Judge Advocate” in the Assignment History section. 

2.	His Duty Qualification History Brief (DQHB) that met the Management Level Review (MLR) reflect his JDA and the correct effective date/duty title.

3.	He be granted Special Selection Board (SSB) consideration for the CY01B board, or direct promotion to LTC as if selected by that board.

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APPLICANT CONTENDS THAT:

A month before the board convened, he requested, but never received, a copy of his Officer Selection Record (OSR). A second request, after the board met, was processed. The omission of his joint service was in violation of AFI 36-2501. This instruction requires that officers who should receive appropriate consideration for performance in JDAs have their records precisely identified to the selection board members, that joint duty officers receive consideration in establishing the “cut line,” and that officers’ performance in current or past JDAs receive consideration. The Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 1330.02A does not prohibit the listing of joint duty history. Although the joint duty history is not required to be reported to the JCS [italics applicant’s], joint duty history is required to be listed. The CJCSI pertains to review of promotion board results by the Chairman and does not prohibit the listing of joint duty history. There is no prohibition on listing JDA in the Joint Duty History section of the OSB. The Military Personnel Flight Memorandums (MPFMs) clearly illustrate the difference between the Joint Reporting Category vs. Joint Duty History areas on the OSB. He attempted to correct his records very early and often. He contacted the 72nd MSS Military Personnel Flight (MPF) by phone and email and often received snide remarks while trying to make corrections. He used more than reasonable diligence. Not listing the correct effective date/duty title and his JDA played a significant role in properly accessing his records during the MLR process. The Robins MPF admitted this mistake, which occurred at a critical stage of the promotion process. 

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

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STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major with a date of rank (DOR) of 1 May 97. 

He was considered but not selected by the CY01B and CY02B boards, which convened on 5 Nov 01 and 12 Nov 02, respectively.  

The OSBs for both boards reflect his latest effective date/duty title as “16 Jul 01/Staff Judge Advocate,” which is the date/title the applicant is requesting.  Both OSBs have blank “Joint Duty History” sections, but the “Assignment History” sections on both OSBs included the joint duty tours, including the tour level designation of “DD/J.” Also, the applicant wrote a letter to the CY02B board president (Exhibit B) advising, among other things, that he had occupied two JDA billets with the DIA.  

The Promotion Recommendation Forms (PRFs) for both boards had overall recommendations of “Promote.” The CY01B PRF had a duty title of “Deputy Staff Judge Advocate,” and the CY02B PRF had a duty title of “Staff Judge Advocate.”

CJCSI 1330.02B (which superceded CJCSI 1330.02A) directs that joint promotion consideration does not apply to medical, dental, veterinary, medical service, biomedical service, nurse, chaplain, or judge advocate specialties.

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AIR FORCE EVALUATION:

HQ USAF/JAX advises that since they do not have the ability to make duty changes to members’ records in the Military Personnel Data System (MilPDS), they cannot verify when these changes were made. However, they can verify that as of [21 Apr 03] all information on the applicant was correct.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPAPD advises that officers who are assigned to joint duty assignment listing (JDAL) billets are eligible to receive joint credit in accordance with Title 10, USC, Chapters 36 and 38. As such, all officers retain their joint duty histories for serving in JDAL positions. A review of the applicant’s personnel record confirms both the Air Force and the Joint Staff’s systems of record were updated to reflect appropriate joint duty credit at the time the promotion board convened. However, as a Non-Line officer and in accordance with CJCSI 1330.02B, joint promotion consideration does not apply to medical, dental, veterinary, medical service, biomedical science, nurse, chaplain, and judge advocate specialties and are exempt from the provisions of this instruction. DPAPD is unable to correct the officer’s OSB to reflect joint credit and joint duty history.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPPO notes that, based on HQ AFPC/DPAPD’s advisory, joint promotion consideration does not apply to the judge advocate specialty. As for the alleged incorrect effective date/duty tile, the OSB that met the CY01B board did show an effective date/duty title of “16 Jul 01/Staff Judge Advocate.” As the error was not present on the OSB, SSB consideration is not justified. As for the applicant’s contention that the inaccurate effective date and duty tile influenced the MLR’s review process, presumably he believes it resulted in the promotion recommendation he received. If so, relief must be sought through the evaluation appeal process in accordance with AFI 36-2401. The applicant did not provide any evidence showing the DQHB was incorrect or that the effective date/duty title on the DQHB negatively impacted the MLR process. Although he provided a fax coversheet and memo dated 5 Oct 01, 30 days before the CY01B board convened, in support of his assertion that he requested but never received a copy of his OSR, DPPPO cannot validate the fax was received by HQ AFPC/DPPBR1. There is no evidence the AFPC Records Section received the request. Further, the applicant has not shown evidence of any follow-up action with the Records Section to obtain a copy of his OSR. Denial is recommended.

A complete copy of the evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts that nowhere in the referenced CJCSI does it say that joint duty history will not be reflected on an OSB. Further, the CJCSI 1330.02B is a review procedure for joint duty positions, not an instruction for what is or is not placed on OSBs. Paragraph 3b states that officers with these specialties may not be assigned to JDA positions and are excluded from the provisions of this instruction. None of these specialties could receive joint credit. However, the regulation does not prevent a denial of joint duty credit that was previously earned. That is precisely his point.  What purpose would a regulation serve to deny joint credit that was previously earned? That is not the intent of this regulation. If so, it would have stated joint credit previously earned will not be considered. This is supported by AFI 26-2501. Board instructions AFPC issues go into great detail about excluding joint duty reporting status (which is not his contention). However, for earned and credited joint duty history, it clearly states the last five JDAs will be displayed on the OSB. AFPC made no comment concerning this notification memorandum and did a cursory review of his appeal. Also, not including his joint duty history violates Title 10, Chapter 36. AFPC failed to address the duty title/effective date mistakes.  He provided proof that his records were incorrect before the DQHB and that he did, in fact, request a copy of his OSR. His faxed request did go to HQ AFPC/DPPBR. He asks for SSB consideration or direct promotion to the grade of LTC.

The applicant’s complete response, with attachments [also provided with Exhibit A], is at Exhibit G.

[Note: The applicant advised in his rebuttal that he did not receive the HQ AFPC/DPAPD advisory. The AFBCMR Staff forwarded a copy of this 2 Jun 03 evaluation to him on 30 Oct 03.]

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ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPAPD contends the applicant’s record accurately reflected his previous joint tour history as evidenced by the documents they provide. However, as a Non-Line officer and IAW DODI 1300.20, judge advocates are included in the definition of a professional specialty. As such, they cannot hold a joint duty assignment and are excluded from joint promotion categories. Further, CJCSI 1300.02B does not apply to judge advocate officers since they are defined as a professional specialty and have no joint promotion requirements or objectives. Therefore, the applicant’s records are correct.

A complete copy of the evaluation, with attachments, is at Exhibit H.

HQ AFPC/JA asserts that previous advisories relating to this case have correctly pointed out that judge advocates may not be assigned to JDAs and are exempt from the requirements to track and analyze the consideration given to joint duty officers in promotion boards. However, CJCSI 1330.02B is not intended to diminish the consideration of promotion boards of joint duty by officers such as the applicant, whose joint duty is a valid part of their assignment history, even though coming prior to the officer’s transfer to a professional corps. It was an error not to include the applicant’s joint duty service from 1991 through 1995 in the “Joint History Duty” block of the OSBs. However, AFPC/JA believes the error was harmless because of the additional, specific information in his OSBs for both boards describing his JDAs. The mandates of statutory and regulatory requirements to provide promotion boards with appropriate information to consider an officer’s JDAs were satisfied in both of the applicant’s promotion boards. Clearly both the applicant’s duty title and effective date are correctly stated for both boards. The CY01B PRF duty title (Deputy Staff Judge Advocate) is correct inasmuch as the rating official and relevant information for PRFs are set by regulation as of the “PRF Accounting Date,” which is 150 days before the promotion board. As for his duty title on his DQHBs for the MLRs, the unlabeled and undated roster with no demonstrated connection to the DQHB he provides must be weighed against the 4 Sep 01 Virtual Military Personnel Flight (VMPF) report showing a correctly updated duty title and an email describing a 6 Sep 01 VMPF printout showing the same. They agree with DPPPEC that it is appropriate to expect the correct duty description reflected by the 4 Sep 01 VMPF was carried forward to the documentation for the late Sep and early Oct 01 MLRs. The applicant has not provided evidence of probable material error or injustice. If the AFBCMR decides otherwise, they note the SSB the applicant has requested would not involve a review of the MLR and PRF processes. If an SSB review is granted, the review should logically first involve a review of the PRF and MLR processing preceding the CY01B board. A copy of his OSB should have been made available to him, even in the absence of follow-up requests by him. However, this error is again harmless to the facts of this case. The OSB would have been correct as to his duty title and the issue of joint duty history would have been substantively covered as discussed above. Therefore, denial is recommended.

A complete copy of the evaluation is at Exhibit I.

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATIONS:

The applicant argues HQ AFPC/JA is incorrect in asserting that not listing his joint duty history as JDA on his OSB was a harmless error. It is highly doubtful the judge advocate board members ever served in JDAs and would be unaware of the importance of JDAs and performance unless it was clearly specified on his OSB. None of his OPRs ever say “Joint Duty Assignment.” Further, the 1 Mar 94 OPR duty title is not even listed on his OSB. There is little chance the promotion board could have deciphered the DIA evaluations found six reports under his JAG assignments and determine they were JDAs, especially in light of the absence on the OSB. His DIA OPRs do not say “JDA at the DOD level” as AFPC/JA infers. His PRF has no reference to any JDA qualifications. He exercised due diligence to correct the JDA error before the board met only to be erroneously told that his earned joint duty would not be displayed on his OSB. He was denied a promotion factor that certainly could have given him an advantage over other peers lacking such qualifications and experience. It is disingenuous to say failing to list his joint duty credit was harmless in this context of a JAG board of his peers with very few, if any, having joint experience and two of the board members were Non-Line, non-JDA eligible officers. The omitted JDA information would certainly have been a positive discriminator in his promotion evaluation. His incorrect record was at a distinct disadvantage. He cites similar AFBCMR cases that resulted in relief. Congress’s intent was clear that officers serving or who have served in JDAs be clearly identified and considered for promotion. With regard to the contested duty title and reporting date, the Air Force is wildly speculating on what was presented before the MLR because they acknowledge no records exist. The HQ USAF/JAX states the “errors” have been corrected, but cannot state when. This weighs toward the fact that errors were present on his OSB, which he was not able to review before it met the promotion board. 

[Note: The applicant requested a copy of “any such review by AFPC/DPPPEC” as referred to in the AFPC/JA advisory. However, presumably this was oral coordination as nothing other than the attached advisories (Exhibits C, D, E, H, and I) were made available to the AFBCMR and, in turn, to the applicant.]

A complete copy of the applicant’s response, with attachments, is at Exhibit K.

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations with regard to the JDA information on his OSBs.

2.	The application was timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant partial relief. HQ AFPC/JA believes the provisions of AFI 36-2501 and the service instructions provided by the applicant calling for JDA information to be included in the Joint Duty History block of the OSB are applicable to all officers with past or present joint duty history. As such, they acknowledge it was an error not to include the applicant’s 1991 through 1995 joint duty service on the CY01B and CY02B OSBs. However, we disagree with their opinion that this was a “harmless error.”  The applicant makes more persuasive arguments, such as the importance of this information as a positive discriminator in the context of non-JDA candidates, his JDA history was not readily apparent in his records without being clearly specified on the OSBs, he exercised due diligence in attempting to correct the OSBs, and his promotion opportunities suffered a disadvantage. As for the contested Assignment History entry, both the CY01B and CY02B OSBs correctly reflected the effective/duty title requested by the applicant. The applicant’s suggestion for direct promotion as an alternative remedy was noted; however, we believe the SSB process is the more appropriate method for evaluating his promotion potential. Therefore, we recommend the applicant’s OSBs be corrected to the extent indicated below and he be afforded SSB consideration for the CY01B board and, if necessary, the CY02B board.  

4.	We deliberated over the applicant’s assertion that his DQHB reviewed by the Sep and Oct 01 MLRs did not reflect his JDA and the 16 July 01 duty assignment entry. Based on the evidence presented by the Air Force and the applicant, we cannot determine with certainty whether the DQHB was incorrect and adversely affected the MLR process as the applicant contends. Further, as supporting records apparently are destroyed after the promotion boards are announced, an MLR cannot be reconstituted. If the applicant believes the PRF promotion recommendation was negatively impacted, we would suggest he obtain supporting statements from his senior rater and MLR president and first seek relief under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluations. In view of the above, this portion of the applicant’s appeal should be denied. 

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to add his joint duty assignments at the Defense Intelligence Agency (DIA) during 6 January 1991 - 6 May 1993 and 7 May 1993 - 16 June 1995 in the Joint Duty History section of the Officer Selection Briefs (OSBs) for the Calendar Year 2001B (CY01B) and CY02B Lieutenant Colonel (LTC) Central Selection Boards.

It is further recommended that he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the CY01B Lieutenant Colonel Central Selection Board and, if not selected, by the CY02B Board.

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The following members of the Board considered this application in Executive Session on 11 February 2004 under the provisions of AFI 36-2603:

			Chair
			Member
			Member

The following documentary evidence relating to AFBCMR Docket Number BC-2003-00941 was considered:

   Exhibit A.  DD Form 149, dated 10 Mar 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ USAF/JAX, dated 21 Apr 03.
   Exhibit D.  Letter, HQ AFPC/DPAPD, dated 2 Jun 03.
   Exhibit E.  Letter, HQ AFPC/DPPPO, dated 15 Sep 03.
   Exhibit F.  Letters, SAF/MRBR, dated 19 Sep 03.
   Exhibit G.  Letter, Applicant, dated 14 Oct 03, w/atchs.
   Exhibit H.  Letter, HQ AFPC/DPAPD, dated 17 Nov 03, w/atchs.
   Exhibit I.  Letter, HQ AFPC/JA, dated 16 Dec 03.
   Exhibit J.  Letters, AFBCMR, dated 30 Oct 03, & SAF/MRBR,
                  dated 19 Dec 03.
   Exhibit K.  Letter, Applicant, dated 16 Jan 04, w/atchs.

                                   
                                   Chair 

AFBCMR BC-2003-00941

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 add his joint duty assignments at the Defense Intelligence Agency (DIA) during 6 January 1991 - 6 May 1993 and 7 May 1993 - 16 June 1995 in the Joint Duty History section of the Officer Selection Briefs (OSBs) for the Calendar Year 2001B (CY01B) and CY02B Lieutenant Colonel (LTC) Central Selection Boards.

	It is further directed that he be considered for promotion to the grade of lieutenant colonel by a Special Selection Board for the CY01B Lieutenant Colonel Central Selection Board and, if not selected, by the CY02B Board.

				
				Director
				Air Force Review Boards Agency