RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03623 INDEX CODE: 112.10 XXXXXXX COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be directly promoted to the grade of major by the CY03B (8 December 2003) In-the-Promotion Zone (IPZ) Major Central Selection Board (CSB) with an effective date commensurate to those selected by this board. 2. In the alternative, he receive Special Selection Board (SSB) consideration for the CY03B CSB and all subsequent boards without the 2003 "Special Assistant" duty title entry on his Officer Selection Briefs (OSBs). ________________________________________________________________ APPLICANT CONTENDS THAT: Following the initial relief granted by the Board consisting of the deletion of an OPR, correction of his OSB flying status and directing promotion consideration by SSB, additional corrective actions were independently directed by AFPC/JA. These corrections included deleting a derogatory duty title from his Duty History Qualification Brief (DHQB), invalidating his primary zone major’s board Promotion Recommendation Form (PRF). As a result, a new PRF was prepared and submitted to AFPC. On 4 April 2008, his AF Form 8, Certificate of Aircrew Qualification was voided and removed from his flight records. By removing the AF Form 8 which documented a “failed” check ride and improperly triggered a Flying Evaluation Board (FEB), the Board effectively nullified the FEB recommendation that flowed from the check ride. Because of the FEB recommendation, he was removed from his T-38 duties before his primary zone board met. Had the Board's corrective action been accomplished before the promotion board met in combination with the Board’s removal of a derogatory OPR, the evidence supports he would have been selected for promotion in the primary zone. While pursuing relief from the Board and AFPC he was selected for continuation on active duty as a pilot to 20 years of service and received a $125,000 Aviation Continuation Pay (ACP) Bonus. However, he has not been selected for promotion to major in any subsequent SSBs or other above the promotion zone (APZ) boards due to the uniquely conspicuous and uncorrectable gap of performance data in his records. The recent actions by AFPC/JA and the Board crystallized and cement the irrefutable fact his records as they existed before the major’s promotion board, were inaccurate in so many places that it is impossible to reconstruct them with sufficient accuracy. His request fulfills the AFBCMR’s outlined criteria for direct promotion. Substantial evidence casts serious doubt on the partiality and bias of his now retired squadron commander who authored and approved his OPRs. This evidence further cements his records are “irrevocably” in error and cannot be reconstructed in such a manner to permit him to compete for promotion on a fair and equitable basis. In support of his request, applicant’s counsel submits an eighteen page brief, copies of his AF IMT 709, Promotion Recommendation, various awards and decorations, AF Forms 707b, Company Grade Officer Performance Report (2LT thru CAPT); AF Forms 475, Education/Training Report; character reference letters and several other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 31 May 1995, the applicant was commissioned in the Air Force. On 12 September 2005, AFPC/DPPPO provided the following statistics for the 2003B Major’s promotion board: Line of the Air Force Promotion Opportunity: 95%, Officers considered: 2287, Officers selected: 2132, Overall promotion rate: 93.2%, Rated pilot promotion rate: 96% (573 selected of 597 considered), Rated pilot promotion rate, Squadron Officer’s School (SOS) completed in residence: 98.3% (549 of 558). In a previous appeal, the applicant requested direct promotion to the grade of major; however, the Board denied his request. Since then he has had further corrections to his record. The applicant has six nonselections to the grade of major by the CY03B, CY04A, CY05B, CY06B, CY07A, and CY08C, major CSBs. On 4 May 2006, the Board approved voiding and removing the applicant’s OPR rendered for the period 14 October 2002 through 13 October 2003 from his record, corrected his OSB to show his flying status as "ACT OPER FLYING," and directed SSB consideration by the CY03B CSB and all subsequent boards for which the 13 October 2003 OPR was a matter of record. He was considered by the SSB that convened on 25 September 2006 for the CY03B, CY04A and CY05B major CSB’s but was not selected for promotion. On 4 April 2008, the Board declared the AF Form 8 void and removed it from his record. The applicant also submitted an appeal through the Evaluation Report Appeals Board (ERAB) requesting substitution of his CY03B PRF and SSB consideration, both requests were approved. On 29 September 2008, his request for deletion of duty title “SPEC ASST TO DO, DM, T-38 IP” was also approved. He was considered for the CY03B CSB on 29 September 2008; however, he was not selected for promotion to the grade of major. ________________________________________________________________ AIR FORCE EVALUATION: DPAO has no recommendation. DPAO states after reviewing the applicant’s record, several discrepancies were found in his duty history. His duty history has been updated in the Military Personnel Data System (MilPDS) to reflect: IP, T-38, effective 14 October 2001, B-1 AC, Requalification Training effective 14 October 2003 and Eval Liaison Officer, B-1 AC effective 14 June 2006. Additionally, the Wing Scheduler, B-1 AC duty title entry effective 3 April 2007 was removed due to a lack of documentation. The effective date for the duty title SQ Safety Officer, IP, T-38 was changed from 30 April 2001 to 30 April 2000 to more accurately reflect the available documentation. The complete DPAO evaluation, with attachments, is at Exhibit B. AFPC/DPSOO recommends partial approval. DPSOO states the results of the CSBs the applicant met were based on a complete review of his entire selection record, assessing whole person factors. To grant a direct promotion would be unfair to all of the officers who have competitive records but did not get promoted. DPSOO notes the overall rate for pilots selected with resident SOS was 98%. For those with a promote recommendation the select rate was only 92%. Although still relatively high, it isn't a guarantee he would have been promoted had the errors not existed. Both Congress and DOD have made clear their intent that errors ultimately affecting promotion should be resolved through the use of SSBs. When many good officers are competing for a limited number of promotions, it is extremely competitive. Without access to all the competing records and a review of their content, DPSOO believes sending approved cases to SSBs for remedy is the fairest and best practice. After a careful review of this application, DPSOO recommends the board deny his requests for direct promotion to the grade of major. However, DPSOO recommends an SSB for the P0403B, P04048, P0405B, P0406B, P04078 and P0408C CSBs with the corrected duty history as shown on AFPC/DPAOS’s revised attachment. The complete DPSOO evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: The applicant's counsel responded to the Air Force advisory stating nothing refuted the evidence submitted. While identifying more errors in his APZ records, the advisory arguably recognizes this case fulfills the extraordinary criteria justifying direct promotion; the records in question are flawed beyond the ability to sufficiently repair them for fair competition at a supplemental selection board. In the context of a 98.3% promotion rate for rated pilots and even "only" a 92% promotion rate for all rated pilots with SOS completed with a "P" PRF, JA’s deletion of the duty title applicable to the original PRF, invalidating his PRF and denying him an entire year of duty history in comparison with his peers, standing alone, is sufficient justification for the Board to directly promote him. This justification is further solidified by the approved replacement PRF. Unfortunately, due to the cumulative and multiple record errors that were deliberately induced by the questionable conduct of a now-retired officer, this new PRF was based on a duty title and PRF from two years prior to his IPZ board. Despite this fatal and unrecoverable error in his records, the ERAB still approved the new PRF. These facts crystallize the conclusion his records, due to deliberately induced errors beyond his control, can never fairly compete against his peers for promotion. The advisories proposed solution to perform another SSB after they inserted an additional duty title into his records, is still incomplete. After insertion of a missing duty title, yet another PRF would have to be completed before an SSB could be performed. Even then, his record would be one duty title and OPR short. He has no available duty title and PRF for a year prior to his IPZ Board. The applicant’s records are clearly damaged beyond the ability of any SSB to provide fair promotion competition and there is an extremely high likelihood he would have been promoted. On 8 June 2009, a memorandum from the applicant’s Wg/CC was forwarded for inclusion in his file. The complete response, with attachments, is at Exhibit D. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: DPAO reiterates that several discrepancies were found in the applicant’s duty history and were updated. DPAO states that AFPC’s goal is to ensure the applicant’s records reflect the most current and accurate information available. While AFPC acknowledges the OPR is not the primary source document for duty histories, neither the AF Form 2096, Classification/On-the-Job- Training Action or the squadron commander were available to confirm the applicant’s duty history. Therefore, the OPRs represented the best available documentation. It is important to note that duty titles and duty AFSCs reflected on performance reports must match that which is reflected in MilPDS at the time the report is closed. The changes were made in an effort to eliminate gaps in the applicant’s history which would have appeared abnormal to a promotion board. AFPC is left with several options: 1) The OPRs are accepted as source documents in which case the corrections stand. 2) The OPRs are not used as source documents. Therefore the record should have remained unchanged to include the “Spec Asst to DO, GDM, T-38 IP” as well as the obvious gaps in duty history. 3) The member provides source documentation by means of AF Forms 2096 for each of the duty titles in question. The complete DPSOO evaluation, with attachments, is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant’s counsel states the 16 December 2009 opinion acknowledges the technical incorrectness of their insertion of the “Instructor Pilot, T-38” duty title. In light of the errors in question in this case, AFPCs decision to insert that duty title is an imperfect and technically incorrect effort to make his records complete and accurate. However, the advisory ignores the previous decision by the ERAB that the "least incorrect" duty title for the applicant’s revised PRF was "Squadron Safety Officer, IP, T-38" from the year prior to the insertion of the previously missing "Instructor Pilot, T- 38" duty title inserted by DPAO during this application. The ERAB had the same information available for the DPAO author's advisory. Indeed, during the PRF revision process, when the applicant’s senior rater and MLR president first submitted a PRF with the "Instructor Pilot, T-38" duty title (derived from the most recent OPR), the ERAB rejected it and demanded that the replacement PRF be based on the most recent duty title in the duty history – the "Squadron Safety Officer, IP, T-38" duty title. This further corrected PRF was subsequently submitted and is now the matter of record PRF. Finally, while DPAO acknowledges the incorrectness of inserting the "Instructor Pilot, T-38" duty title, it ignores the fact doing so places the ERAB – approved replacement PRF in error, which flaws the applicant’s records yet again. These repeated contradictions by AFPC as to the correct composition of his records again establish as fact that his records cannot be sufficiently repaired for a fair and accurate assessment of his promotion potential and relative merit at any SSB. Ignoring substantive matters once again, both of these additional advisory opinions implicitly acknowledge the substantive justifications for AFBCMR directed promotion through their silence on these issues. The AFBCMR's authority to promote officers directly due to extraordinary circumstances exists for cases like this. In a nutshell, the reasons for the applicant to have not been selected for Major have been shown to be unsubstantiated. Irreparable gaps in his records preclude fair promotion competition. Therefore, immediate promotion to major is warranted. The 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant SSB consideration. In this respect, we note the applicant’s duty history has been corrected, and as such, AFPC/DPSOO has recommended that his corrected record receive promotion consideration by an SSB for all boards for which the erroneous duty history was a matter of record. We agree. Therefore, we recommend his records be corrected to the extent indicated below. 4. Notwithstanding the above, we find insufficient evidence to warrant the applicant’s direct promotion to the grade of major. While we note counsels assertions that the applicant’s records are irrevocably in error and damaged to the point that he cannot receive fair promotion consideration by an SSB; however, we continue to believe that direct promotion should only be granted under extraordinary circumstances and we do not find that his case meets that crieteria. This Board has, on several occasions, found the applicant can receive fair consideration for promotion through the SSB process. While the additional corrections to his record may enhance his chances for promotion selection, in the absence of evidence that he would have been selected by the original board had his record been correct at that time, we find no basis upon which to circumvent the SSB process and direct his promotion to the grade of major through the correction of record process. 5. We recognize that in all cases, we cannot make an officer completely whole and therefore, strive to provide substantial equity. In this regard, we note the applicant has benefited greatly from the correction of records process. As a result of his three previous applications to this Board an OPR closing 13 Oct 03 and an AF Form 8, Certification of Aircrew Qualification, were declared void and removed from his records; the 1 May 02 duty title “Spe Asst to Do, GDM, T-38 IP” was removed from the Assignment History Section of his P0403B Officer Selection Brief (OSB); the P0403B OSB was amended to include “ACT OPER FLYING” under Aeronautical Flying Data; and he has been reconsidered for promotion to the grade of major on several occasions by an SSB. Based on our recommended relief, his corrected record will once again be provided SSB consideration for promotion to major, prior to which he will be given yet one more opportunity to review his records for accuracy. Over the course of its adjudication of his requests over the past four years, the Board has gone to great lengths to ensure his records are correct in order to provide him fair and equitable consideration for promotion; however, ultimately it is the applicant’s responsibility to insure that his records are accurate prior to promotion consideration. In view of this and noting the previous corrections to his records, the Board strongly suggests that he exercise due diligence during his review of his records and ensure they are correct; otherwise, in the absence of evidence to the contrary, any additional request for further correction along these lines will not be favorably considered as it will be viewed as either a failure on his part to ensure his records are correct prior to promotion consideration or simply an attempt to reconstruct his record until he is selected for promotion. 6. 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. ________________________________________________________________ THE BOARD RECOMENDS: The pertinent military records of the Department of the Air Force relating to APPLICANT, be considered for promotion to the grade of major by a Special Selection Board (SSB) for the CY03B, CY04A, CY05B, CY06B, CY07A, and CY08C CSBs Major Central Selection Boards. ________________________________________________________________ The following members of the Board considered Docket Number BC- 2008-03623 in Executive Session on 25 August 2009 and 18 March 2010, under the provisions of AFI 36-2603: Panel Chair Member Member All voted to correct the record as recommended. The following documentary evidence pertaining to Docket Number BC-2008-03623 was considered: Exhibit A. DD Form 149, dated 21 September 2008, w/atchs. Exhibit B. Letter, HQ AFPC/DPAO, dated 15 April 2009, w/atchs. Exhibit C. Letter, HQ AFPC/DPSOO, dated 28 April 2009, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 1 May 2009. Exhibit E. Letter, Applicant’s Counsel, dated 3 June 2009. Exhibit F. Letter, HQ AFPC/DPAO, dated 16 December 2009, w/atchs. Exhibit G. Letter, SAF/MRBR, dated 15 January 2010. Exhibit H. Letter, Applicant’s Counsel, dated 11 February 2010. AFBCMR BC-2008-03623 Air Force Review Boards Agency