RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02470
		                (CASE 4)
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be directly promoted to the grade of major as though selected by the Calendar Year 2003B (CY03B) Major Central Selection Board.

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APPLICANT CONTENDS THAT:

He was not given fair consideration for promotion by the CY03B board because his record was prejudiced by an Article 15 that remained in his record even though it should have been removed as directed by the AFBCMR.

Although he was given Special Selection Board (SSB) consideration without the Article 15 in his record, he does not believe he was given fair consideration for promotion because his record had been tainted.

In support of his appeal, the applicant provided an expanded statement, supportive statements, copies of two Officer Performance Reports (OPRs), a Meritorious Service Medal (MSM) citation, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates the applicant is currently serving on active duty in the grade of captain, having been promoted to that grade on 11 Aug 99.  His Total Active Federal Military Service Date (TAFMSD) is 16 Sep 85.

On 14 Mar 02, the Board considered applicant’s request that an Article 15 imposed on 23 Sep 98 be set aside and removed from his records, and his OPR closing 15 Mar 99 be amended.  The Board recommended the Article 15 and OPR be removed from his records, which was accepted by the Director, Air Force Review Boards Agency (Exhibit C).

Applicant was considered for promotion to the grade of major by the CY03B Major Board, which convened on 8 Dec 03, with the Article 15 imposed on 23 Sep 98 and OPR closing 15 Mar 99 still in his records, notwithstanding the Board’s directive that they should be removed from his records.  He was nonselected.

Applicant's Officer Performance Report (OPR) profile follows:

	PERIOD ENDING	EVALUATION

	28 Aug 96	Meets Standards
	15 Mar 97	Meets Standards
	15 Mar 98	Meets Standards
	15 Mar 99                 Removed by Order of Chief of Staff
	15 Mar 00	Meets Standards
	 1 Feb 01	Meets Standards
	 1 Feb 02	Meets Standards
  #	 1 Feb 03	Meets Standards
	 1 Feb 04	Meets Standards

# Top Report at the time the applicant was considered and nonselected for promotion to the grade of major by the CY03B Major Board.

On 24 May 04, the applicant was considered for promotion to the grade of major by an SSB for the CY03B Major Board without the aforementioned Article 15 and OPR in his records.  He was nonselected.

On 4 Aug 04 and 18 Aug 04, the Board considered the applicant’s request that his nonselection for promotion to the grade of major by the CY03B Major Board be set aside, and he be directly promoted to the grade of major.  The majority of the Board recommended the applicant’s request be denied, which was accepted by the Director, Air Force Review Boards Agency, on 17 Sep 04 (Exhibit D).

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AIR FORCE EVALUATION:

AFPC/DPPPO recommended denial indicating that based on the evidence provided, they do not support the applicant’s claim.  Although an officer may be qualified for promotion, in the judgment of a selection board, he may not be the best qualified of those available for the limited number of promotion vacancies.  In their view, to grant a direct promotion to the applicant would be unfair to all other officers who have extremely competitive records and also did not get promoted.

According to AFPC/DPPPO, Congress and the Department of Defense (DoD) have made clear their intent that errors ultimately affecting promotion should be resolved through the use of SSBs.  In the applicant’s case, he was granted an SSB, with the record that should have met the original board, and was again nonselected.  AFPC/DPPPO believes the applicant has been fairly considered for promotion.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a detailed response indicating, in summary, he is not challenging the SSB process but the records that met the SSB.  The evidence he has presented proves his records have been prejudiced, and that the only option is his direct promotion.  It is the duty of the Board to remove the possibility of an injustice, and he believes he has proven the existence of that possibility.

Applicant’s complete response, with attachment, is at Exhibit G.

By letters, dated 7 Jan 05 and 4 Feb 05, the applicant provided additional documentary evidence for the Board’s consideration, which is attached at Exhibits H and I.

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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.  The applicant’s complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find his assertions and the documentation provided in support of his appeal sufficient to warrant corrective action.  We took note of the previous Board decision that an Article 15 received by the applicant seemed unduly harsh for the offenses he allegedly committed, and that the Article 15, and an OPR which appeared to be based on the Article 15, should be removed from his records.  Despite the correction of his records, we also note the applicant was considered for promotion to the grade of major with those documents in his OSR and was nonselected for promotion.  He was subsequently granted an SSB without the documents in his record and again was nonselected for promotion.  The applicant requests he be directly promoted because his records have been tainted by the Article 15.  However, we are cognizant that the use of selection boards to select officers for promotion is a highly sensitive and discretionary function and their actions cannot be presumed.  In the selection process, officers compete for promotion under the whole person concept whereby many factors are 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 his or her record, may not receive a high enough score to warrant selection for promotion simply because of the limited number of promotion vacancies.  We believe that in order to justify a Secretarial promotion, there must be evidence the officer has suffered an error or an injustice, and there is persuasive evidence the officer's record cannot be fairly considered by a duly constituted selection board.  After our careful analysis of this case, we are not persuaded the applicant's case is so exceptional the SSB which considered his record absent the Article 15 and OPR could not reach a fair decision regarding the applicant’s promotion potential, and the extraordinary solution of a directed promotion is warranted.  In this respect, a review of the available evidence reveals that although a previous Board made the decision the Article 15 should be removed from his records, they were of the opinion his actions which prompted his commander to impose the punishment were the result of poor judgment, if not criminal intent.  Based on the foregoing, we are not inclined to usurp the discretionary authority of a duly constituted selection board.  In our estimation, placing the corrected record before an SSB was the appropriate course of action, and that the applicant has been afforded proper and fitting relief.  Therefore, in the absence of clear-cut evidence indicating the applicant was not afforded full and fair consideration for promotion to the grade of major by a duly constituted SSB, or he was treated differently than other similarly situated individuals, we conclude that no basis exists to act favorably on the applicant’s request for direct promotion to the grade of major.

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 issues 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 AFBCMR Docket BC-2004-02470 in Executive Session on 25 Jan 05 and 1 Mar 05, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum for the Chief of Staff,
                dated 10 Apr 02, w/atch.
    Exhibit D.  Memorandum for Executive Director, AFBCMR,
                dated 17 Sep 04, w/atch.
    Exhibit E.  Letter, AFPC/DPPPO, dated 24 Nov 04.
    Exhibit F.  Letter, SAF/MRBR, dated 24 Nov 04.
    Exhibit G.  Letter, applicant, dated 6 Dec 04, w/atch.
    Exhibit H.  Letter, applicant, dated 7 Jan 05, w/atchs.
    Exhibit I.  Letter, applicant, dated 4 Feb 05, w/atch.