RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03887 INDEX CODE: 131.00 COUNSEL: XXXXXXXXXX HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He receive a constructive promotion to major, or that he be considered for promotion to the grade of major by Special Selection Board (SSB) for the Calendar Year 1992C (CY92C) Major Central Selection Board with a corrected Promotion Recommendation Form (PRF) and be reinstated to active duty with back pay and allowances. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The benchmark records used on the SSB convening on 9 January 2006 or any subsequent SSB in reference to the CY92C and CY93B selection boards were tainted. The Secretary of the Air Force's (SAF) Memorandum of Instruction (MOI) used during these boards, unconstitutionally required members to consider race and gender when selecting officers for promotion to major. As a result of the MOI, he was passed over twice for promotion and involuntarily discharged from the Air Force. The board which considered and selected him for release was given an instruction which, in his opinion violated the Equal Opportunity Clause of the United States Constitution. While the Air Force granted his request to be reconsidered by SSB to major, the benchmark records used in the process were tainted. These records included PRFs that contained instructions requiring an accurate, unbiased assessment of a policy which was clearly in violation of the instructions issued to the original board. The applicant does not believe it is fair for his records to be subjected to benchmark records established under unlawful direction which have resulted in tainted records. He believes that the correction of records is warranted in this case. To meet all SSBs following the unlawful directions given to the original board is unfair. The initial SSB should be set aside because of the tainted records that resulted from the unlawful board directions. The only fair and just remedy is to recognize the senior rater's promotion recommendation. He does not support any form of discrimination, nor should he be victimized by such. In support of his application, the applicant submits a legal brief and copies of an AF Form 709, Promotion Recommendation. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was considered and not selected for promotion by the CY92C and CY93B Major Central Selection Boards. Both boards were conducted using the selection methodology and procedures directed by the SAF Memorandum of Decision (Harmless Error Procedure for EO Clause-Related Cases) dated 19 February 2004. He was honorably discharged on 2 March 2005 in the grade of captain. On 13 July 2005, the Air Force Board for Corrections of Military Records (AFBCMR) considered a similar request and denied the applicant's request for reinstatement to active duty with back pay and a constructive promotion to major. However the AFBCMR granted the applicant consideration for promotion to the grade of major by SSBs for CY92C and CY93B Major Central Selection Boards. ________________________________________________________________ AIR FORCE EVALUATIONS: AF/DPSIDEP recommends approval for replacement of his PRF and states it appears that one or more officer performance reports (OPRs) were not available and/or considered in the preparation of the contested PRF. The applicant has provided support from his senior rater. AFPC/DPSIDEP's complete evaluation, with attachments, is at Exhibit C. AFPC/DPB recommends denial and states all aspects of the board complied with law, DOD and Air Force policy, instruction and guidance. The Air Force acknowledged the possible "tainting" of the benchmark records and implemented specific procedures to offset any theoretical adverse effect. These procedures have resulted in a considerably higher selection rate than normal SSB procedures and were used for the applicant's SSBs. AFPC/DPB's complete evaluation, with attachments, is at Exhibit D. AFPC/DPPPOO recommends denial as the applicant was granted an SSB for CY92C and CY93B boards based on the possibility that he may have been harmed by the equal opportunity clause contained in the MOI used by the original boards. In addition, a SAF approved modified selection method was used in determining selection/nonselection status. The existence of an error or injustice, if any, was corrected by virtue of the SSB granted for the CY92C and CY93B Major CSBs. AFPC/DPPPOO's complete evaluation is at Exhibit E. ________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: The Counsel for the applicant states that the advisory opinions attempt to defend an impermissible promotion reconsideration process. The Air Force finds itself in an untenable position, having engaged in unconstitutional activities in an effort to socially engineer the officer corps, having to reverse its position under judicial scrutiny, and then being faced with the consequences of its illegal activity. The promotion board that originally considered the applicant for promotion was conducted contrary to the Fifth Amendment to the United States Constitution. That is not in dispute and is acknowledged by the SAF in his 19 February 2004 MOI. It is clear that the only reason for conducting a "harmless error" test is to correct an identified error. The error in question pertains to the use of race and gender as factors in the promotion selection process. The problem, however, lies with the Air Force leadership’s decision to have him compete against files that are tainted by the original error. To be selected for promotion, the applicant will have to score better than one of the files that were originally selected for promotion. But whether the files of those selected for promotion were influenced by the unconstitutional instruction is unknown. There is no record that demonstrates how the original selection board regarded and applied the unconstitutional instructions. The presumption of regularity would lead to the conclusion that the officers at the board followed their orders, which leads to the conclusion that race and gender were factors considered by the board. AFPC/DPPPOO indicates that the applicant has presented insufficient relevant evidence to demonstrate the existence of probable error or injustice. It is ironic and sad that there is a notion in some quarters that the burden in this matter is with the applicant, given the misconduct by the Air Force. In fact, the applicant has carried the burden. He has demonstrated the error that was visited upon him. Further, the MOI from the SAF establishes that the process is expected to result in a considerably higher selection rate. The AFBCMR should be aware that Constitutional protections are individual, not group oriented and the effort to use a statistical analysis of how a mythical officer would benefit from the changed process is irrelevant. The issue is whether the applicant, as an individual whose Constitutional right to due process was denied, will be treated fairly. Use of tainted files for competition does not meet that standard. Given the foregoing, the AFBCMR is respectfully requested to direct promotion of the applicant. His file clearly demonstrates that his performance of duty and potential for higher responsibility are worthy of promotion. The facts also demonstrate that the selection process of the original board was constitutionally defective and that the so called "harmless error test" does not achieve the objective of establishing harmless error. Counsel for the applicant's complete response, with attachments, is at Exhibit F. ________________________________________________________________ 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 an error or injustice. After thoroughly reviewing the applicant’s submission, the Board is not persuaded that his request should be granted. Counsel’s contentions are duly noted; however, in our opinion, the detailed comments provided by the appropriate Air Force offices of primary responsibility adequately address those allegations. In regards to the recommendation made by AFPC/DPSIDEP to grant relief for a corrected PRF, the Board has thoroughly reviewed the documentation submitted with this appeal, including the statements from the rater and senior rater of the contested PRF; however, these statements are not sufficiently persuasive to demonstrate that an error existed on the PRF. In this respect, the Board notes that the senior rater had access to and knowledge of the applicant’s record at the time it was written and wrote the PRF recommendation based on those facts and it was his (senior rater's) responsibility as to what was written into Section IV of the PRF. In addition, the Board believes that it was the applicant’s responsibility to show he made an attempt to update his record prior to the CY92C and CY93B boards. Furthermore, the Board notes that the PRF is not the only document and source of information used by a Central Selection Board and we therefore find insufficient evidence that the PRF was the sole reason for the applicant’s nonselection to major. In respect to the tainted benchmark records, we note that the Air Force implemented specific procedures that complied with the law, Department of Defense and Air Force policy, instructions, and guidance to counterbalance any theoretical adverse effect caused by the so called tainting of the original benchmark records. In view of these procedures, we are not persuaded the applicant's nonselection for promotion by SSB is due to tainted benchmark records. Finally, the applicant has not provided sufficient evidence that would lead us to recommend direct promotion to the grade of major. It is our view that the determination of who is best qualified for promotion is best left to a board of officers empowered by law to make such decisions. Therefore, in the absence of evidence to the contrary, we believe that he has been provided full and fitting relief. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered Docket Number BC- 2007-03887 in Executive Session on 8 October 2008, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2007-03887 was considered: Exhibit A. DD Form 149, dated 21 Nov 07, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIDEP, dated 11 Mar 08. Exhibit D. Letter, AFPC/PB, dated 24 Apr 08, w/atchs. Exhibit E. Letter, AFPC/DPPPOO, dated 27 May 08. Exhibit F. Letter, SAF/MRBR, dated 27 Jun 08. Exhibit G. Counsel’s Response, dated 23 Jul 08, w/atchs.