SECOND ADDENDUM TO
                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  89-01387
            INDEX NUMBER:  131.00; 111.01;
                           107.00
            COUNSEL:  MR. GUY J. FERRANTE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect direct promotion to the  grade  of
lieutenant colonel as if selected by  the  Calendar  Year  (CY)  1993A
Lieutenant Colonel Board.

In the alternative,  a  Training  Report  be  inserted  in  his  files
reflecting enrollment in an AFIT program during the time  between  his
1989 separation and 1991 reinstatement; the indorsement level  on  the
Officer Evaluation Reports (OERs) closing 27  March  1984,  28 January
1985, and 1 June 1985, be  upgraded;  Air  Force  Commendation  Medals
(AFCMs) coinciding with his transfer from Shaw AFB and separation from
Ramstein Air Base be accomplished and  inserted  in  his  record;  the
prejudicial comments and notations on the  AF  Form  77  (Supplemental
Evaluation Sheet) covering the period 8 March 1988 thru 26 June  1991,
and on the OER closing 27 March  1984  be  removed;  and  that  he  be
considered for promotion to the grade of major  by  Special  Selection
Board (SSB) for the  CY87  Central  Major  Selection  Board,  and  for
promotion to the grade of lieutenant colonel by SSB beginning with the
CY93A Central Lieutenant Colonel Selection Board.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Through counsel, applicant contends his record was not  “substantially
complete” at the time of his CY93 and  CY94  promotion  considerations
because of omissions that can be traced directly to his  now-corrected
1984 OER and his erroneous 1989 separation.  The tangible flaws in his
record include:  11 unrated months prior to his  1989  separation;  2½
unrated  years  between  his  erroneous  1989  separation   and   1991
reinstatement;  misleading,   inaccurate,   and   improperly   reduced
indorsement levels on OERs closing 27 March 1984, 28 January 1985, and
1 June 1985; lack of deserved decorations upon transfer from Shaw  AFB
in 1987 and Ramstein Air Base in 1989; direct reference to restoration
to active duty by AFBCMR  action  on  AF  Form  77;  “Corrected  copy”
reference on 27 March 1984 OER; and PRFs for CY93 and CY94  lieutenant
colonel  promotion  boards  prepared  on  basis  of   inaccurate   and
incomplete personnel record.

Unfortunately,   the   opportunity   for    truly    meaningful    SSB
reconsideration would still be lacking since other problems are not so
easily overcome.  There does  not  appear  to  be  anything  that  can
realistically be done to fill the 11 months of unrated time  in  1988-
89.  Nor can his records be corrected to reflect  the  assignments  he
would have received had those decisions been made on his  real  record
of performance and potential.  More importantly, however, it does  not
seem feasible for his senior rater to now recreate the competition for
the “Definitely Promote” recommendations he awarded in 1993 and  1994.
For these reasons, a directed promotion to  the  grade  of  lieutenant
colonel would be the most appropriate way to remove the “consequences”
of his flawed 1984 OER once and for all.

In support  of  his  request,  applicant  provided  counsel’s  29-page
expanded comments, with attachments,  including  statements  from  the
evaluators on the  corrected  OER,  previous  reports  and  subsequent
reports.  The complete submission is at Exhibit R.

___________________________________________________________________

RESUME OF CASE:

On 18  October  1989,  the  AFBCMR  favorably  considered  applicant’s
request that the Officer Effectiveness Report (OER) rendered  for  the
period 21 June 1983 thru 27 March  1984  be  amended  to  upgrade  the
rating and comments in Section III, Item  9  (Professional  Qualities)
from “Meets Standards” to “Well Above Standards”  and  to  insert  the
comment “Behavior and bearing were exemplary” in place of the comments
that were on the report.  The Board further  recommended  that  he  be
considered for promotion to the grade of major  by  Special  Selection
Board (SSB) for all selection boards in which the  amendments  to  the
OER closing 27 March 1984 were not a matter of  record.   (Exhibits  A
thru L)

On 7 May 1990, applicant received SSB consideration for the  CY87  and
CY88 central major boards.  He was not selected by the CY87 Board, but
was subsequently retroactively selected for promotion to the grade  of
major by the CY88 board, with a date of rank of 1 January 1989.

Based on the determination by the SSB that applicant should have  been
selected for promotion in 1988, and since his nonselection led to  his
mandatory retirement, the  AFBCMR,  on  15  November  1990,  favorably
considered his request for reinstatement to active duty.  However, the
Board denied his requests for assignment to AFIT and other alternative
assignments.  (Exhibits M thru Q)

___________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a second lieutenant, Air Force Reserve,
on 10 June 1977; entered extended active duty on 31 December 1977; and
was integrated into the Regular Component and  progressively  promoted
to the grade of captain.  On 31 January 1989, he was  discharged  from
all appointments by reason of his two nonselections for  promotion  to
the grade of major.

On 27 June 1991, he was reinstated to active  duty  in  the  grade  of
major, with a date of rank of 1 January 1989.  He served on continuous
active duty until 31 June 1995, when he was released from active  duty
and voluntarily retired effective 1 July 1995.

A resume of applicant’s OERs/OPRs subsequent to his promotion  to  the
grade of captain follows:

     PERIOD CLOSING    OVERALL EVALUATION

       19 Jan 82 1-1-1
       20 Jun 82 1-1-1
       20 Jun 83 1-1-1
  */#  27 Mar 84 1-1-1
  #    28 Jan 85 1-1-1
  #     1 Jun 85 1-1-X
        1 Jun 86 1-1-1
       13 Oct 86 1-1-1
       12 Jul 87 1-1-1
        7 Mar 88 1-1-1
AF Fm 77 - No report available for period 8 Mar 88 thru 26 Jun 91.
       28 Oct 91 Meets Standards
       28 Oct 92 Meets Standards
  **   30 Jun 93 Meets Standards
  ##   30 Jun 94 Meets Standards

* Corrected OER.

# Contested reports.

** Top report in file when considered and not selected  for  promotion
by the CY93A Lt Col Board, which convened on 12 October 1993.

## Top report in file when considered and not selected  for  promotion
by the CY94A Lt Col Board, which convened on 11 October 1994.

___________________________________________________________________

AIR FORCE EVALUATION:

The Appeals and SSB Branch,  AFPC/DPPPA,  reviewed  this  request  and
recommended denial.  Their comments, in part, follow:

DPPPA believes the applicant has not been diligent in the  maintenance
of his records.  They question the fact that  the  applicant  did  not
appeal the contested reports  for  six  years  following  his  initial
appeal.  Had the applicant been responsible in the maintenance of  his
records, he would have appealed the  contested  reports  in  a  timely
manner.  They believe the merits of the  applicant’s  case  speak  for
themselves, as he has procured the necessary support and documentation
in his appeal of the contested OERs.  They do  not,  however,  believe
his appeal should  be  approved,  due  to  his  intentional  delay  in
submitting this case.  They find no reason  the  applicant  could  not
have appealed the contested reports in a timely manner.   He  has  not
provided any evidence that there existed any circumstances that  would
have  precluded  him  from  gathering  pertinent  data,  support,   or
information regarding the appeal process.  Furthermore,  they  do  not
understand why the applicant did  not  appeal  the  contested  reports
following the approval of his 1989 appeal if he  truly  believed  they
were in error or unjust when he became aware of them.

Regarding applicant’s request to have a Training Report (TR) placed in
his record to reflect attendance at AFIT, DPPPA did not  concur.   The
purpose of the appeals process is  to  correct  errors  and  injustice
brought forward in a timely  manner,  not  to  rewrite  history.   The
applicant was not attending AFIT during the time he requests the TR to
reflect.  It would be unfair to all the officers who competed for  and
attended AFIT assignments to allow the applicant to have a  fictitious
entry in his record.

DPPPA did not concur with applicant’s request for direct promotion  by
the CY93A board.  They believe a duly constituted  SSB,  comprised  of
senior officers applying the full set of promotion  criteria,  is  the
only appropriate method of determining the  applicant’s  potential  to
serve in the next higher grade.

The complete evaluation is at Exhibit S.

The Senior Attorney-Advisor, AFPC/JA, discussed the defense of  laches
and the timeliness of the applicant’s requests.  JA believes it  would
be appropriate to apply  laches  in  this  case  to  bar  all  of  the
applicant’s claims.  JA stated both elements  of  the  laches  defense
(inexcusable delay and prejudice resulting to the defendant  (in  this
case, the Air Force)) are present  in  this  case  and  the  applicant
should be prevented from benefiting  from  his  unjustified  delay  in
bringing this action.

On the merits, JA addressed the  specific  errors  identified  by  the
applicant.  Their comments, in part, follow.

Eleven unrated months.  The applicant has established that he did  not
receive an OER for the last 11 months he served on active  duty  prior
to his early separation in 1989.  The regulation in effect at the time
required an evaluation.  If the Board chooses to deal with this on the
merits, perhaps they could order that a form be placed in  the  record
indicating no rating is available through no fault of the applicant.

Increase indorsement levels on March 1984, January and June  85  OERs.
The applicant provided statements from his chain of command to include
the officer who would have signed the higher level  indorsements  that
they would have recommended and approved a higher level of indorsement
but for the original 1984 OER downgrade.  If the Board chooses to deal
with this on the merits, it could order the OERs to be reaccomplished.

Lack of end of tour decoration from Shaw AFB in 1987.   The  applicant
has provided statements from his chain of command indicating that they
would have recommended him for an AFCM.  There is not a statement from
the approving  authority  stating  that  the  award  would  have  been
approved.  Therefore, even if the Board chooses to deal with  this  on
the merits, they should not grant this relief  because  the  applicant
has not met his burden of proof.

Lack of end  of  tour  decoration  from  Ramstein  AB  in  1989.   The
applicant has provided statements from his chain of  command  and  the
approving authority indicating that they would have supported  an  end
of tour decoration for the applicant, and they were uncertain why  one
was not accomplished at the time.  If  the  Board  chooses,  it  could
order that a decoration be awarded.

“Corrected Copy” reference on  March  1984  OER.   JA  disagreed  with
applicant’s assertion that this notation is improper and  prejudicial.
The notation was added in accordance with the guidance  set  forth  in
AFR 31-11 (1 July 1986) and is a common occurrence  when  a  corrected
record is placed in one’s personnel file.  Even if the  Board  chooses
to address this on the  merits,  no  injustice  has  occurred  and  no
correction is required.

Reference to restoration to active duty on July 1991 AF Form  77.   JA
disagreed with applicant’s assertion that the  standard  statement  on
the AF Form 77 is prejudicial and, in fact, is contrary to the Board’s
prior order in the applicant’s case.  The statement is standard and is
prescribed by AFR 31-11.  It is not contrary to the  Board’s  previous
order, and there is no showing that it prejudiced the applicant in any
way.   Promotion  boards  are  given  special  instructions  on   what
inferences should not be drawn from this type of document in a record.
 Absent proof to the contrary, they are entitled under the law to  the
presumption  that  they  acted  in  accordance  with  law  and   their
instructions (see Sanders v. US., 594 F.2d 804, 219  Ct.Cl.  285,  302
(1979).  Even if the Board  chooses  to  address  this  issue  on  its
merits, no correction should be  ordered  because  the  applicant  has
failed to show error or injustice.

Gap in service record/failure to place AFIT Training Report to  cover.
The applicant goes to great length to argue that the AFBCMR erred when
it  previously  refused  to  create  a  fictitious   Training   Report
indicating that the applicant was selected for and was serving  in  an
AFIT educational assignment during the time he was separated from  the
Air Force.  He directs the Board’s attention  to  a  number  of  cases
requiring the Board to give “full  relief”  and  make  the  serviceman
“whole” if an injustice is found to have occurred.  JA suggests  that,
while the Board has broad powers to fashion remedies, it is  not  good
practice for the Board  to  create  fictionalized  records  when  they
fashion remedies.  One of the cases applicant relies on, Yee v. United
States, 206 Ct. Cl. 388 (1975), does not suggest creation of fictional
records but merely suggests that  the  gap  in  the  records  must  be
explained as being caused by the Air Force.  The applicant  cites  the
case of Weiss v. United States, 407 F. 2d 416 (Ct. Cl. 1969)  for  the
proposition that the record sent to a Selection Board be complete  and
fairly portray the officers record.  JA agrees but points out that the
Weiss court also stated that the record should be  “complete  and  not
misleading,” supra at 418.  The law does not  require  and  the  Board
should not require the creation of fictions when  correcting  records.
The Board’s initial decision on this  issue  was  correct  and  should
stand.

JA further stated that it is rare that any correction  of  record  can
ever return a person to a perfect world.  The Board  previously  found
error in the applicant’s record and ordered it corrected  and  ordered
his restoration to active duty.  The forms in  his  record  accurately
reflect these facts.  The  gaps  in  his  record  are  the  result  of
appropriate corrective actions taken on the error in his record.   The
gaps are covered by forms designed  to  explain  in  basic  terms  the
reason for a given report or reports absence.   This  procedure  fully
accords with the applicable regulation and the law.

The PRFs for 1993 and 1994 Lieutenant Colonel boards  are  inaccurate.
The applicant has provided a  statement  from  the  senior  rater  who
prepared  these  forms.   He  states  only  that  alleged  errors   in
applicant’s records may have impacted his rating, and he was unable to
say whether applicant would have received a  “Definitely  Promote”  if
the alleged errors had been corrected prior to his consideration.   In
JA’s view, the  applicant  has  not  met  his  burden  of  showing  an
injustice occurred on these forms and no correction is appropriate.

Direct promotion.  JA disagrees with applicant’s argument  that  given
all the errors in his records the only true  remedy  would  be  direct
promotion to lieutenant colonel as of the first date  eligible.   Both
Congress and DOD have made clear their intent that  errors  ultimately
affecting promotion should be resolved  through  the  use  of  special
selections boards (10 USC 628(b) and DOD Directive 1320.11,  para  D).
Air Force policy mirrors that (AFI 36-2501, Chapter 6).

For the reasons detailed above, JA recommended that the  Board  reject
the applicant’s complaint in its entirety based  on  the  doctrine  of
laches.  In the event the Board decides to consider  this  application
on its merits, JA concluded that he has provided sufficient support to
authorize  correction  of  several  documents  in  his  records.   The
particulars on each document are set  out  above.   Should  the  Board
conclude that any documents should be corrected, the remedy should  be
correction of the documents and then SSB consideration  for  promotion
to lieutenant colonel.  They do not believe that direct  promotion  to
lieutenant  colonel  is   appropriate   especially   considering   the
deliberate delay in submitting this appeal until after  the  promotion
boards had met to consider his records.

The complete evaluation is at Exhibit T.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  noted  that  the  advisory  opinions  admit  that   many   of
applicant’s claims of error and injustice  have  merit.   He  provided
comments addressing the issues that  JA  and  DPPPA  disagree  warrant
relief.

He stated the essence of applicant’s claim is the denial of  fair  and
equitable promotion consideration because of the absence,  through  no
fault of his own, of evaluations and other information that would have
allowed members of the 1993 and  1994  lieutenant  colonel  boards  to
reach reasoned and intelligent decisions about his qualifications  for
promotion.  He also challenged the AFBCMR’s previous refusal  to  help
address this problem by inserting an AFIT  Training  Report  into  the
applicant’s record that would have explained  at  least  part  of  the
period for which his record is now noticeably blank.  The AF  Form  77
currently in applicant’s record, combined with the lack of a  TR  that
would have explained the gaping hole in his record,  create  precisely
the evil the law seeks to avoid - they nullify the relief  the  AFBCMR
previously sought to afford applicant by retroactively reinstating him
to active duty.

If the Board directs any corrections to applicant’s pre-1993  records,
including those which DPPPA and JA concede  are  deserved,  it  should
further direct that his 1993 and 1994 PRFs be reaccomplished in  light
of those corrections.

Had applicant been “properly considered” by the CY87 promotion  board,
a “Corrected Copy” annotation on the corrected OER would not have been
in his record.  But it was in his record when  considered  by  SSB  in
1990, in direct and literal violation of 10 USC 628 and  AFI  36-2501.
Applicant is at least entitled to  SSB  reconsideration  by  the  CY87
major board without the  offending  annotation  in  his  record,  with
reconsideration for lieutenant colonel if selected.

With regard to timeliness/laches,  counsel  stated  that  contrary  to
DPPPA’s belief, there is no time limitation (three years or otherwise)
for requests for  reconsideration.   Even  if  laches  does  apply  in
principle, it will not bar  applicant’s  claims  because  he  did  not
unreasonably or inexcusably delay in “raising his claims.”

Counsel provided additional comments addressing the  SSB  process  and
stated that under the unique circumstances of  his  case,  a  directed
promotion to the grade of lieutenant colonel would be the most fitting
and  appropriate  relief.   Short  of  that,   applicant   should   be
reconsidered  for  promotion  with  a  record  that   is   truly   and
meaningfully purged of the  repercussions  of  the  error  this  Board
previously sought to rectify.

Counsel’s complete response is at Exhibit V.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable  error  or  injustice  warranting  favorable
consideration  of  the  applicant’s  request  for  direct   promotion.
Applicant’s  contention  that  his  record  was   not   “substantially
complete” at the time of his CY93 and  CY94  promotion  considerations
because of omissions that can be traced directly to his  now-corrected
1984 OER and the 11-month period he was not on active  duty  are  duly
noted.  However, after careful consideration of the evidence provided,
we have seen no evidence which would  lead  us  to  believe  that  his
records were so inaccurate or misleading that the members of the  duly
constituted selection board, applying the complete promotion criteria,
were precluded from rendering a  reasonable  decision  concerning  his
promotability in comparison to his peers.  In view of  the  foregoing,
and in the absence of evidence to the contrary, we find no  compelling
basis to recommend favorable consideration on the applicant’s  request
for direct promotion to the grade of lieutenant colonel.

2.  With respect to applicant’s alternative  requests,  we  also  find
insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice warranting corrective action.

      a.  Applicant’s request that a Training Report  be  inserted  in
his files reflecting enrollment in an AFIT  program  during  the  time
between his 1989 separation and  1991  reinstatement  is  duly  noted.
However, he was not in an AFIT  program  during  the  time  period  in
question.  Therefore, we find no  basis  to  favorably  consider  this
request.  To do so would create an erroneous and misleading record.

      b.  We noted the supporting statements provided by  the  members
of applicant’s rating  chain  on  the  OERs  closing  27  March  1984,
28 January 1985, and 1 June 1985.  However,  these  statements,  while
supportive of the applicant’s request, did not persuade  us  that  the
evaluators were precluded from forwarding the  contested  reports  for
higher level indorsements or that the reports are in error  or  unjust
as  rendered.   We  also  found  no  evidence  that  the  members   of
applicant’s chain of command were precluded from recommending him  for
an end of tour decoration when he departed Shaw AFB.  Furthermore,  as
has been previously noted, traditionally, this Board  is  not  in  the
business  of  creating  fictitious  records  of  duty  performance  or
approving   without   recommendation   an   award   for    unspecified
accomplishments.  Since the applicant has not provided  reaccomplished
reports or a recommendation for the requested award  prepared  by  the
appropriate  officials,  favorable  consideration   concerning   these
matters is not possible.

      c.  Applicant’s contention that there were 11 months of  unrated
service prior to his 31 January 1989 separation and that  he  did  not
receive a deserved decoration upon  his  separation  are  duly  noted.
However, the supporting statements from the members of the applicant’s
chain of command did not persuade us that a report was  required.   To
the contrary, the rater indicated  that  he  has  no  recollection  of
preparing one or electing not to prepare one and the  only  reason  he
would not have prepared an OER would be under circumstances where  one
was not required.  In addition,  although  the  supporting  statements
indicate that they are not sure why the applicant  was  not  submitted
for an end of tour decoration and now support such  a  recommendation,
no  evidence  has  been  presented  showing   that   the   individuals
responsible for submitting a  recommendation  for  a  decoration  were
precluded from doing so at the time of his separation.

      d.  Applicant contends that the notation “Corrected Copy” on the
now corrected OER closing 27 March 1984 and the AF  Form  77  covering
the period 8 March 1988 through 26 June 1991 were prejudicial  to  his
chances  for  fair  and   equitable   promotion   consideration.    By
regulation, an AF Form 77 is  placed  in  an  individual’s  record  to
document all unrated periods.  In this case, the contested AF Form  77
accurately reflects the reason and the inclusive period in  which  the
applicant was not rated due to his break in service.  In addition, the
notation on  the  corrected  OER  was  made  in  accordance  with  the
governing regulation in effect at the time.  We found no evidence that
the notation on the corrected OER or the contested form were  prepared
contrary to the governing regulation, that they were improperly  filed
in the applicant’s records, or that he was  treated  differently  than
other similarly-situated officers.

      e.  Applicant contends that the PRFs prepared for the  CY93  and
CY94  Lieutenant  Colonel  Boards  were  prepared  on  the  basis   of
inaccurate and incomplete personnel records.  In this regard, we  note
the statement provided by the senior rater who only indicated that the
alleged errors may have  impacted  his  decision  as  to  whether  the
applicant would have received Definitely Promote  recommendations  and
that there is no way to determine at this time whether this would have
occurred.  A review of the evidence presented did not convince us that
the senior rater was  unable  to  render  a  fair  assessment  of  the
applicant’s promotion potential when considering  whether  or  not  to
award him a Definitely Promote recommendation.

      f.  Based on the foregoing, and in the absence  of  evidence  to
the contrary, we find no basis to recommend favorable  action  on  the
applicant’s alternative requests.

___________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  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  this  application  in
Executive Session on 14 October 1998, under the provisions of AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Mr. Charles E. Bennett, Member
      Ms. Martha Maust, Member

The following additional documentary evidence was considered:

    Exhibit R.  Letter from Counsel, dated 29 Aug 95, w/atchs.
    Exhibit S.  Letter, AFPC/DPPPA, dated 28 Jun 96.
    Exhibit T.  Letter, AFPC/JA, dated 1 Oct 96.
    Exhibit U.  Letter, SAF/MIBR, dated 22 Oct 96.
    Exhibit V.  Letter from Counsel, dated 6 Jan 97.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair