RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-03514
                             INDEX CODE:  111.01
	                           COUNSEL:  YES
	                           HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be considered by a Special Selection Board (SSB) for promotion to the grade of lieutenant colonel (Lt Col) by the CY99B Lieutenant Colonel Central Selection Board (CSB).

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APPLICANT CONTENDS THAT:

The CY99B CSB was unconstitutionally conducted.  The courts have recently had several occasions to review and analyze instructions given to Army and Air Force competitive boards that urge special consideration for female and minority candidates at the expense of white male candidates.  In each instance, either the court found that the instruction failed to pass constitutional muster or the military service declined to litigate the issue.  If he is reconsidered for promotion he should compete with a full and complete personnel record.  Unfortunately, his record was incomplete when considered by the promotion board in 1999 in that it lacked the citation to accompany the Meritorious Service Medal (MSM) that he was awarded in 1995.  While the award of the medal was reflected on his Officer Selection Brief (OSB), there was no description of the "distinctive accomplishments" upon which it was based.  Nor was it readily apparent from the OSB that the award was earned while he was still serving as a captain.  This was the highest decoration that he had received prior to the 1999 promotion board.  Most importantly, the citation covered the period of February 1993 through September 1995 and singularly lauded his invaluable contributions to the Tri-Service Standoff Attack Missile Program (TSSAM).  The Officer Performance Report (OPR) rendered during that span contained scant mention of those contributions.  This was because the TSSAM program was shrouded in secrecy for much of the time.  By the time his MSM was awarded, the Air Force had acknowledged the program so the citation could include more of the details, and his participation in it.  As a result, this is not a case where information was available from other sources; it is a case where omission of the citation left a hole in the promotion board member's perception of the applicant's overall performance.  Clearly, he was denied fair, equitable, and accurate promotion consideration if his record was evaluated without the benefit of this noteworthy citation.  
In support of his request, applicant provided his counsel’s brief, the MSM citation and copies of performance reports rendered between 17 December 1992 and 4 January 1996.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was commissioned in the Regular Air Force on 20 October 1984 and was progressively promoted to the grade of major having assumed that grade effective and with date of rank of 1 June 1996. 

The applicant was considered but not selected for promotion by the CY99B Lieutenant Colonel CSB which convened on 30 November 1999. 

He retired from the Air Force 31 October 2004, after serving 20 years and 11 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial.  DPSOO states the applicant through counsel contends that the board instructions contained an illegal and constitutionally impermissible instruction that gave unfair advantage to women and minorities (Berkley, et al., v United States, United States Court of Appeals for the Federal Circuit, Docket Number 01-5057).  Beginning in 1998, the verbiage for the memorandum of instructions provided to central selection boards and special selection boards was changed to delete the cited instruction.  Therefore, the applicant's request does not fall under the Berkley decision.  The applicant contends his MSM citation was missing from his Officer Selection Record (OSR); however, he does not provide any documentation showing what action he took to ensure it was filed in his OSR prior to the convening of the CY99B board.  Since it is the officer's responsibility to ensure the accuracy of his record, DPSOO believes that had he checked his OSR prior to the board he would have noticed the missing citation and taken corrective action at that time.  Although the citation was not on file in his OSR when the board convened, the board members knew of its existence as evidenced by the entry on his OSB.  Therefore, the board was knowledgeable the decoration was awarded to the applicant and factored into the promotion selection process.  As such, DPSOO is not convinced the absence of the citation contributed to his non-selection for promotion.  The applicant has not provided any proof that his consideration was contrary to law.  In addition, he has not demonstrated he exercised reasonable diligence in maintaining his record.  As such, DPSOO stands by AFI 36-2501, paragraph 6.3.3., which states “do not have an SSB if, by exercising reasonable diligence, the officer should have discovered the error or omission and could have taking corrective action before the originally scheduled board convened.” 

The complete DPSOO evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded stating DPSOO offers no support whatsoever for their claim that this case falls outside the Berkley precedent because the memorandum of instructions given to selection boards was changed before his 1999 consideration.  Moreover, this makes no sense since Berkley was not even decided by the Court of Federal claims until the year 2000 and the Air Force prevailed at that level.  Not until 2002 did the Court of Appeals reverse that favorable ruling.  It is inconceivable that the Air Force would have taken action publicly acknowledging error (deleting offensive language) while maintaining in federal court that the language was not offensive at all.  There are several things wrong with DPSOO's position.  First the applicant did check the accuracy of his records on file at Barksdale Air Force Base, and the MSM citation was there.  Only after his non-selection did he discover that his records were apparently not maintained as accurately at Randolph Air Force Base as they were at Barksdale.  The regulation does not require absolute or perfect diligence; it contemplates "reasonable diligence."  And it was eminently reasonable for him to confirm the accuracy of his local records and then assume that the official ones were just as accurate.  Secondly, the MSM was awarded in 1995.  The board discrepancy report found in his record after his non-selection was generated in 1999, just days before the promotion board for his in-promotion-zone (IPZ) consideration.  But there is no similar report documenting any discrepancies prior to his earlier below-promotion-zone (BPZ) promotion consideration.  This sequence of events can lead to only two conclusions.  The first is that the Air Force professionals themselves did not notice the discrepancy before the BPZ board, and it cannot be unreasonable for him to be as diligent as them.  The second possibility is that the MSM citation was in his records before the BPZ board but then lost or misplaced some time before the IPZ board.  In this case, it was inconceivable for him to take leave, travel to Randolph Air Force Base, personally inspect his master file, and find a MSM citation there, only for it to go missing later.  Form should not prevail over substance, and he should not be penalized for the "reasonable diligence" he exercised.  Third, DPSOO's position would wreak havoc with this Board's jurisdiction.  By statue, he had three years from discovery of error or injustice to apply for relief.  DPSOO concedes that his application is timely, so this Board is obligated to consider it.  But DPSOO urges that it not because he did act sooner.  This would render the statutory time limitation meaningless.  He acted within the time specified by Congress and should not be denied deserved relief for arbitrary administrative reasons.  Finally, DPSOO breaks out the boilerplate argument about the promotion board knowing about his MSM from its mention in his OSB, which was "good enough."  But it was not "good enough" in this case because noteworthy information in the missing citation was not available elsewhere.  His invaluable contributions, while still a captain with the TSSAM program were not mentioned in contemporary OPRs.  Nor does DPSOO address the numerous times that this Board has granted relief in precisely the situation here.  It was erroneous for his records to be considered without the citation to his 1995 MSM, and he suffered an injustice as a result of that omission.  DPSOO has offered no compelling reasons for that error and injustice to not be corrected at this time.  

The complete response is attached at Exhibit D.

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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.  Applicant is contending his non-selection was unjust because of a Memorandum of Instruction (MOI) containing an equal opportunity clause that was subsequently found unconstitutional.  However, the MOI in question affected boards held between January 1990 and June 1998.  The contested board convened on 30 November 1999, well after the MOI was no longer in use.  Therefore, the applicant's selection record was not affected by its use.  Applicant is also contending that the citation that accompanied the MSM he was awarded in 1995 was missing from his OSR.  We carefully considered counsel's contentions regarding this matter including his argument that by checking the accuracy of his records maintained at Barksdale AFB he exercised reasonable diligence; however, we are not persuaded by his assertions that an error or injustice exists warranting corrective action.  In this respect, the Air Force has historically made considerable effort to ensure officers are aware that it is their responsibility to ensure their OSRs are accurate prior to the convening of selection boards.  Information was provided to officers along with preselection briefs and during the time period in question the Air Force had implemented various mentoring programs for this specific purpose.  In addition to the authorization of permissive TDY for the purpose of reviewing selection records, eligible officers are also apprised of the option of reviewing their records over the phone with personnel at HQ AFPC or requesting a copy of their OSR by fax or mail.  In view of the above, we are not persuaded by counsel's argument that reasonable diligence was exercised in this case.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as basis for our conclusion that the applicant has failed to sustain his burden of proof of the existence of an error or injustice warranting corrective action.

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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 Number BC-2007-03514 in Executive Session on 31 March 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 September 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOO, dated 7 December 2007.
    Exhibit D.  Letter, SAF/MRBR, dated 11 January 2008.
    Exhibit E.  Letter, Counsel, dated 6 March 2008.