RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-02628

      XXXXX COUNSEL:  None

      XXXXXXXX   HEARING DESIRED: Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The letter of admonishment (LOA),  and  unfavorable  information  file
(UIF) be removed from his records.

2.     The  officer  performance  report  (OPR)  rendered  for  the   period
20 August 1995 through 7 June 1996 be declared void  and  removed  from  his
records.

3.    He be considered for promotion to the  grade  of  colonel  by  Special
Selection Board (SSB) for the Calendar Year 1996B  (CY96B)  Central  Colonel
Selection Board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, are contained in the letter  prepared  by  the
appropriate office of the Air Force.   Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, are contained in the letter  prepared  by  the
appropriate office of the Air Force.   Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy, Operations Officer  Assignments  Division,  AFPC/DPAO,  reviewed
the application and states that after a thorough review of  the  case,  they
recommend the LOA and UIF be removed from
applicant’s records.  In addition, the OPR closing 7  June  1996  should  be
removed and  he  be  allowed  to  compete  for  colonel  on  a  supplemental
promotion board.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The Staff Judge Advocate, AFPC/JA, reviewed the application and states  that
a fair reading of the legislative history and  judicial  interpretations  of
10 U.S.C. 1552(b) clearly supports an interpretation that relief  should  be
limited to those situations to preclude substantial injustice,  rather  than
to insure precise uniformity of treatment or to favor one side or the  other
on issues about which differences of opinion might  reasonably  exist.   The
United States Claims Court has repeatedly defined an injustice (or  “in  the
interest of justice”) as that behavior or an action that rises  to  a  level
of shocking the conscience.  They note that  applicant  apparently  utilized
the available administrative processes to present his side of  the  case  at
each stage of the actions taken against  him.   He  responded  to  his  LOA,
establishment of his UIF, and his referral OPR.   The  BCMR  is  thus  faced
with weighing applicant’s actions or inaction, in  light  of  his  response,
against the actions taken against him, to determine if those actions  “shock
the conscience.”  They leave the ultimate decision to the Board.

A complete copy of the Air Force evaluation is attached at Exhibit D.

The Chief, Field Activities Division, AFPC/DPSFC, reviewed  the  application
and states that they are not in the  business  of  assessing  a  commander’s
decision  making  authority  when  assigning   administrative   actions   to
subordinates.  They believe denial is appropriate.   The  applicant  had  an
opportunity to provide rebuttal to the LOA.  Commanders have  no  obligation
to remove the LOA/UIF early unless they believe  the  information  presented
in the rebuttals warrants it.

A complete copy of the Air Force evaluation is attached at Exhibit E.

The Ch, Promotion, Evaluation and Recognition  Div,  Director  of  Personnel
Program Management, AFPC/DPPPA, reviewed this application  and  states  that
Air Force policy is that an evaluation report is accurate  as  written  when
it becomes a matter  of  record.   It  takes  substantial  evidence  to  the
contrary to have a report changed or voided.  To  effectively  challenge  an
OPR, it is important to hear from all the evaluators from the report  –  not
only for support, but for clarification/explanation.  The  applicant  failed
to provide information from any one from the rating chain of  the  contested
report.  Absent their comments they are unable to determine  if  the  report
was or was not erroneous.
It appears to them the applicant was a stellar performer for  the  reporting
period.  However, the rater allowed one incident to  dominate  his  judgment
when he rendered the  contested  report.   They  concur  with  the  advisory
written by HQ AFPC/DPAO, 30 Sep 97, and agree the actions taken against  the
applicant were excessive when compared  with  actions  taken  against  other
officers  assigned  to  HQ  USAFE/DOT  division  and  86  WG  officers   who
disregarded his office’s directions.   While  the  advisory  written  by  HQ
AFPC/DPSFC, 8 Dec 97 does not recommend withdrawal of the  LOA  or  UIF,  if
the board were to direct their removal, they  would  have  no  objection  to
voiding the contested OPR and the applicant receiving SSB consideration.

A complete copy of the Air Force evaluation is attached at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  17
December 1997, for review and response.  As of this date,  no  response  has
been received by this office.

_________________________________________________________________

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 probable error or injustice.  After reviewing the  evidence  of
record, we are of the opinion that the actions taken against  the  applicant
were excessive.  In this respect, we believe that  the  applicant  was  held
accountable for activities outside his purview.  We  agree  with  the  Staff
Judge Advocate that there is no apparent error in this case; however,  based
on the totality of  the  evidence  before  this  Board,  the  applicant  has
clearly been the victim  of  an  injustice.   Therefore,  we  recommend  his
records be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a.    The Letter of Admonishment, dated 12 July 1996, and  Unfavorable
Information File Action, be removed from his records.

      b.    The Field  Grade  Officer  Performance  Report,  AF  Form  707A,
rendered for the period 20 August 1995 through 7 June 1996, be removed  from
his records.

It is further recommended that he be considered for promotion to  the  grade
of colonel by a Special Selection Board for the Calendar Year 1996B  Central
Colonel Board.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 12 February 1998, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Sep 97, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPAO, dated 30 Sep 97.
   Exhibit D.  Letter, AFPC/JA, dated 30 Oct 97.
   Exhibit E.  Letter, AFPC/DPSFC, dated 8 Dec 97.
   Exhibit F.  Letter, AFPC/DPPPA, dated 17 Dec 97.
   Exhibit D.  Letter, AFBCMR, dated 17 Dec 97.




                 Panel Chairman


AFBCMR 97-02628




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to XXXXX, XXXXX, be corrected to show that:

            a.   The Letter of Admonishment, dated 12 July 1996, and
Unfavorable Information File Action, be, and hereby are, declared void and
removed from his records.

            b.   The Field Grade Officer Performance Report, AF Form 707A,
rendered for the period 20 August 1995 through 7 June 1996, be, and hereby
is, declared void and removed from his records.

      It is further directed that he be considered for promotion to the
grade of colonel by a Special Selection Board for the Calendar Year 1996B
Central Colonel Board.





             Director

             Air Force Review Boards Agency