RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01672
		INDEX CODE:  131.00
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  He be promoted to the grade of colonel by the Calendar Year 1993A (CY93A) Central Colonel Selection Board.

2.  If the Board elects to promote him to colonel, applicant requests that his Meritorious Service Medal (MSM), third oak leaf cluster (3OLC), received upon his retirement be upgraded to a Legion of Merit (LOM).

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APPLICANT CONTENDS THAT:

Seven months prior to his in-the-primary zone (IPZ) consideration for promotion to colonel his supervision changed three times.  As a result, not all his achievements and accomplishments were passed from commander to commander to commander.  When the Promotion Recommendation Forms (PRFs) were completed his latest commander did not have the most current information to support his promotion recommendation.  Information was missing upon which a commander bases an informed recommendation to the Senior Rater during the process of awarding definitely promote (DP) recommendations.  Without critical information, recommendations carry little weight, the result of which is an inaccurate assessment of an individual's promotion potential.  His last Officer Performance Report (OPR), which closed out on 9 Aug 92, was over nine months old when reviewed in the PRF process.  Critical information was missing and his record was defective when considered during the promotion process.  His senior rater was scheduled for an extended TDY requiring early discussions concerning the PRFs for the colonel's board.  Although his senior rater had the required supervision, he had only been under his current supervisor for three months.  In the preceding seven months he accomplished numerous major projects which his supervisor and senior rater were unaware of.  

In 1993, as part of the promotion board proceedings the Secretary of the Air Force's "Memorandum of Instruction" (MOI) was read to all promotion board members.  The memorandum created a heightened awareness in the board and the instructions had a definite impact on the promotion rates for both minorities and women.  On 17 Apr 02, the United States Court of Appeals for the Federal Circuit ruled that the instructions given to Air Force selection boards to be particularly sensitive to women and minority candidates were unconstitutional because it violated the Fifth Amendment rights to equal protection under the law (Berkley v. United States).  The court ruled the instruction did not simply refer in passing to the possibility of past discrimination against minorities and women.  Rather it provided explicit orders that when board members reviewed the record of minority and women officers, it should be particularly sensitive to the possibility that past individual and societal attitudes, may have placed those officers at a disadvantage from total career perspective.  The court concluded that the instruction required that white male officers be treated differently from minority and female officers.  In August 2002 the Air Force amended the memorandum to ensure fairness and equity for all officers.  

The promotion rate for the Calendar Year 93A Colonel Board (IPZ) was 41.6%.  His supervisor stated that he was his number one candidate for promotion and the applicant was in the top 20% of the hundreds of lieutenant colonels that he had been associated with.  His testimony clearly states that critical accomplishments were missing and the senior rater and Management Level Evaluation Board (MLEB) had insufficient evidence to satisfactorily evaluate his potential.  

In support of his request, applicant provided a personal statement, copies of his performance reports, a personal note he received, the Berkley v. United States court decision, and letters of support.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Regular Air Force on 16 Jul 72.  He was progressively promoted to the grade of lieutenant colonel, having assumed that grade effective and with a date of rank of 1 Jan 89.  He was considered and not selected for promotion to the grade of colonel by the CY93A colonel selection board.  He was retired from the Regular Air Force on 1 Jan 00.  He served 27 years, 5 months, and 15 days on active duty.  

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AIR FORCE EVALUATION:

USAF/JAG recommends that the application be denied as untimely.  The statements provided by the applicant's former supervisor and senior rater fail to substantiate the applicant's assertion that they lacked knowledge of his duty performance and performance-based potential.  His senior rater only expresses his personal belief that the applicant was in the "top 41.6 percent" and that he "would have made an outstanding colonel."  The applicant has failed to meet his burden of providing sufficient evidence of a probable material error or injustice requiring the Board to direct or recommend any military record correction.

The Air Force has consistently maintained that the language of the MOI cited in the Berkley v. United States case is not a constitutionally objectionable classification and creates no benefits of burdens for competitors in the board processes.  Absent the Berkley decision, the applicant has failed to offer evidence he took any affirmative actions to discover or challenge the alleged defective EEO language.  His claim comes at the expense of those who vigorously pursued a perceived wrong and it is well settled in law that an individual cannot sit idly on his rights and not be held accountable for the effects of time until the courts rule in favor of another having the same claim.  The Board's focal point should be on the point in time the individual discovered or reasonably could have discovered, the existence of the error or injustice, in 1993, and not the date of the Berkley decision.  The error alleged occurred during the CY93A colonel selection board, yet his filing was well beyond the three-year statutory limit.  

The JAG evaluation is at Exhibit C.

AFPC/DPPPOO recommends denial.  DPPPOO states that insufficient evidence has been presented in regard to the applicant's request for direct promotion.  An officer may be qualified for promotion, but, in the judgment of a selection board, he may not be the best qualified of those available for the limited number of vacancies.  The board's prerogative should not be usurped except under extraordinary circumstances.  To grant a direct promotion would be unfair to all other officers who have extremely competitive records and also did not get promoted.  Both Congress and DoD have made clear their intent that errors ultimately affecting promotion should be resolved through the use of Special Selection Boards (SSBs).  Without access to all the competing records and a review of their content, we believe sending approved cases to SSBs for remedy is the fairest and best practice.  

The DPPPOO evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his previous contentions and states that neither his new supervisor or senior rater knew what he had accomplished since August 1992 because his previous supervisor had departed for his new assignment and never had the opportunity to relay his accomplishments to the interim commander.  Colonel W--- states"...I did not have the opportunity to provide an input to the OPR that was written just prior to his primary zone promotion board, and I know there were several projects omitted from that report."  Finding fault in General H--- and Colonel M---'s memos for failure to support his assertion is specious.  Neither can be faulted for their omission because neither knew they did not have the most current information to support the awarding of a "DP" recommendation since the leadership changed three times.  It is not an error to make a decision based upon the information available.  

The JAG advisory confirms his assertion of the relevance of the Berkley v. United States case in his application.  JAG further implies that because he was not a participant in the Berkley case, he is not entitled to the court's ruling of equal protection under the law.  The JAG implication should be dismissed.  The court provided its ruling and the government declined to appeal the decision.  It was not 'alleged' defective language as JAG indicates, it was defective language.  He did challenge the MOI in his December 1999 application.  The MOI was a violation of the Fifth Amendment right to equal protection under the law, produced a heightened awareness in the board, created a bias in favor of minorities and women, and had a definite impact on the promotion rates for minorities and female officers--resulting in promotion rates higher than the board average.  

An SSB cannot fairly assess his record for promotion because it is impossible to recreate the atmosphere which would have been in effect had his supervisor not been fired.  He had worked for Colonel W--- for 18 months in 3 different positions.  He could have convinced the senior rater that he was the most deserving of a DP recommendation.  To provide a full measure of relief, he requests direct promotion because he believes an SSB cannot fairly assess his promotion status.  

In support of his request, applicant provided a personal statement, a supporting statement, selection rate data, and a copy of his OSB.  His complete submission, with attachments, is at Exhibit F.

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice that would warrant his direct promotion to the grade of colonel.  Regarding his contentions related to the promotion recommendation process and the assessment of his promotion potential, we note that this issue has been previously addressed by this Board and evidence has not been presented nor are we persuaded by his assertions, that reversal of the previous decision regarding this matter is warranted.  

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant providing the applicant promotion consideration by Special Selection Board (SSB).  The applicant contends that he should be promoted based on the decision of the U.S. Court of Appeals for the Federal Circuit in Berkley, that the special instructions to the selection boards erroneously required differential treatment of officers, based on their race and gender.  In view of the court's findings, and since the Air Force is not appealing that decision, we recommend his records be corrected to the extent indicated below.  We considered his request for a direct promotion; however, it is our opinion that direct promotion should only be granted under extraordinary circumstances and the applicant has provided no evidence, which would substantiate a direct promotion.  Therefore, we believe that consideration by a duly appointed SSB is the fairest and most equitable resolution.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be considered for promotion to the grade of colonel by Special Selection Boards (SSBs) for the Calendar Years 1993A through 1997B Central Colonel Selection Boards.

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The following members of the Board considered AFBCMR Docket Number BC-2003-01672 in Executive Session on 12 Jan 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Apr 03.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, USAF/JAG, dated 16 Jun 03.
    Exhibit D.  Letter, AFPC/DPPPOO, dated 18 Aug 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Sep 03.
    Exhibit F.  Letter, Applicant, dated 3 Oct 03, w/atchs.

                                   Chair

AFBCMR BC-2003-01672

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 APPLICANT, be considered for promotion to the grade of colonel by Special Selection Boards (SSBs) for the Calendar Years 1993A through 1997B Central Colonel Selection Boards.

							Director
							Air Force Review Boards Agency