RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01919
						(Case 2)

		INDEX CODE:  131.00, 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 a Special Selection Board (SSB) for the CY98B Lieutenant Colonel Central Selection Board.
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APPLICANT CONTENDS THAT:

An administrative error in the Memorandum of Instruction (MOI), issued to the members of the 22 January 2001 SSB, degraded the impact of the Definitely Promote (DP) given to him by his senior rater on his Promotion Recommendation Form (PRF) and negatively impacted his promotion selection opportunity.

In support of his request, applicant submits a personal statement, with copies of MOIs. 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 12 March 1982.  He was progressively promoted to the grade of major, effective and with a date of rank of 1 March 1994.  The applicant was considered and nonselected for promotion to the grade of lieutenant colonel by the CY97C (convened on 21 July 1997), CY98B (convened on 1 June 1998), CY99A (convened on 19 April 1999) and CY99B (convened on 6 December 1999) Central Lieutenant Colonel Selections Boards.

On 21 May 1999, while serving on active duty, applicant applied to the Air Force Board for Correction of Military Records (AFBCMR) for promotion consideration to the grade of lieutenant colonel by an SSB for the CY98B (1 June 1998) Lieutenant Colonel Central Selection Board, citing errors on his Officer Selection Brief (OSB).  His application was partially approved by the Board on 20 July 2000.  A copy of the ROP, AFBCMR Docket Number 99‑01399, is at Exhibit C.

On 21 January 2001, the applicant was considered and nonselected for promotion to lieutenant colonel by an SSB for the CY98B selection board.

On 31 March 2002, the applicant was relieved from active duty in the grade of major under the provisions of AFI 36-3203 (Voluntary - Sufficient Service for Retirement) and retired, effective 1 April 2002.  He had completed a total of 20 years and 19 days of active service for retirement.
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AIR FORCE EVALUATIONS:

HQ AFPC/DPPB states that the challenged Memorandum of Instruction (MOI) verbiage first appeared in a MOI applicable to the CY99A Central Colonel Selection Board that convened in August 1999.  The language first appeared in the Special Selection Board (SSB) MOI in January 2001 and continued to be included through January 2002 when the Secretary of the Air Force (SecAF) directed a review of all MOIs for all central boards.  The HQ AFPC/DPPB evaluation is at Exhibit D.

HQ AFPC/DPPPO states that, in January 2002, the SecAF directed a review of all MOIs for all central boards, to include SSBs.  The numerous changes made to the wording of the MOI were not based on the instructions being found to be illegal, unfair or in error.  The applicant has not proven that the wording of the MOI was in error or that it contributed to his nonselection to lieutenant colonel. The HQ AFPC/DPPPO evaluation is at Exhibit E.

HQ AFPC/JA, recommends the application be denied.  In JA’s opinion, the MOI paragraph in question is consistent with Air Force policy and regulation and contains no error.  Moreover, the applicant has not shown how this paragraph “degraded” the impact of his DP or “unjustly undermined” the overall recommendation of his PRF.  In fact, it is difficult to ascertain how instructing the SSB to “consider the competitive circumstances” under which applicant’s DP was awarded could have operated to his detriment.  JA states that the applicant has failed to present relevant evidence of any error or injustice warranting relief.  The HQ AFPC/JA evaluation is at Exhibit F.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and indicated that he believes the inclusion in the MOI of the sentence, “In considering a DP recommendation, it is appropriate to consider the competitive circumstances under which the DP was awarded, as indicated on the PRF” violated the spirit of the SSB process.  The primary reason he takes exception to the addition of the sentence is its stated purpose; to open the door for members of the promotion board to rate competitive circumstances under which DPs were awarded as indicated on the PRF.  PRFs do not provide such data.  In his opinion, what this statement does is open the forum to the subjective analysis of the quality of personnel assigned to given commands.  Based on the fact that this statement was not in his original CY98 promotion board MOI and it opened the door to the subjective analysis of his DP by SSB members, he requests that the Board grant him an SSB where the instruction to the selection board more closely reflects the original CY98 MOI and the statement in question has been removed.  The applicant’s complete submission, with attachment, is at Exhibit H.
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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.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  After reviewing the applicant’s submission and the evidence of record, we are persuaded that relief is warranted.  In this respect, we note that the applicant’s promotion consideration at the 22 January 2001 Special Selection Board (SSB) was reconstituting the CY98B Lieutenant Colonel Selection Board.  Inasmuch as the wording of the Memorandum of Instruction (MOI) for the 22 January 2001 SSB has since been changed by adding a preface sentence to the MOI language under review, which states that “The following paragraph applies to promotion boards held after 1 August 1999.”, doubt exists as to whether or not the applicant received full and fair consideration when he was considered for promotion by the 22 January 2001 SSB.  We believe the applicant should have been evaluated with the same MOI in effect at the original CY98B selection board.  Therefore, in order to offset the possibility of an injustice, we believe any doubt should be resolved in the applicant’s favor.  In view of the foregoing and in an effort to remove any possibility of an injustice to the applicant, we recommend that he be considered for promotion to the grade of lieutenant colonel by an SSB for the CY98B Lieutenant Selection Board, with the MOI in effect at that time.
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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 lieutenant colonel by a Special Selection Board (SSB) for the CY98B Lieutenant Colonel Selection Board, with the Memorandum of Instruction (MOI) in effect at that time.
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The following members of the Board considered this application in Executive Session on 16 October 2003, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-01919.

   Exhibit A.  DD Form 149, dated 30 May 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  ROP, AFBCMR Docket Number 99-01399
   Exhibit D.  Letter, HQ AFPC/DPPB, dated 7 Jul 03.
   Exhibit E.  Letter, HQ AFPC/DPPPO, dated 18 Aug 03.
   Exhibit F.  Letter, HQ AFPC/JA, dated 25 Aug 03.
   Exhibit G.  Letter, SAF/MRBR, dated 29 Aug 03.
   Exhibit H.  Letter from Applicant, dated 22 Sep 03, w/atch.

AFBCMR BC-2003-01919

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 lieutenant colonel by a Special Selection Board (SSB) for the CY98B Lieutenant Colonel Selection Board, with the Memorandum of Instruction (MOI) in effect at that time.