AIR FORCE 

R 
.ECOR 
BOARD 
FOR 

.D OF PROCEEDINGS 
CORRECTION OF MILITARY RECORDS 

IN THE  MATTER OF: 

DOCKET NUMBER:  98-01246  m 

1.3 1999 

COUNSEL : 
HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 

1.  Professional 
command 
recommendations  be  added  to  the  Officer  Performance  Reports 
(OPRs) rendered for the periods 21 February 1990 through 29 June 
1990 and 30 June 1990 through 29 June 1991. 

education 

military 

( PME) 

and 

2.  He  be  considered  for  promotion  to  the  grade  of  lieutenant 
colonel  by  Special  Selection  Board  for  CY94A,  CY96C  and  CY97C 
lieutenant colonel boards. 

APPLICANT CONTENDS THAT: 
Both  of  his  raters  and  additional  raters  for  both  O P R s   in 
question made a mistake regarding what comments they thought they 
could  include in  their remarks, and  all  four of  these officers 
have  requested  that  the  corrections  be  made  to  the  OPRs.  In 
addition, the applicant‘s reviewer for the 1991 OPR concurs that 
the requested changes be made.  These statements from applicant’s 
entire  rating  chain  in  the  years  in  question,  overcome  the 
presumption of  regularity and  correctness.  A l l   these  officers 
state they made  an  error, and  join  in applicant’s request that 
his records be corrected to eliminate the errors. 
Applicant’s  raters,  for both  O P R s ,   were  U.S.  Army  officers who 
misinterpreted  the  Air  Force  evaluation  system,  or  may  have 
Neither  were  aware  of  the  Air 
received  some  bad  guidance. 
Force’s  “unwritten”  policy  that  strong  field  grade  OPRs  must 
include  favorable  recommendations  for  both  PME  and  Command 
positions.  Their statements make their intentions crystal clear. 
They omitted these phrases from applicant’s OPRs  because they had 
mistaken 
The 
inconsistencies between  the  raters  and  their  additional  raters 
highlight this confusion. 

impressions  about  what  was  permitted. 

* 

Initially, applicant assumed that  the omissions were  simply due 
to the fact that he was a brand new major, however, when he later 
contacted his raters, he  found they were not aware that  PME  and 
command  recommendations  were  appropriate. 
When  his  raters, 

98-01246 

additional  raters  and  reviewers  were  made  aware  of  the 
unfortunate error, they submitted their statements to correct the 
injustice. 
This  error  has  now  also  cascaded  through  other 
personnel  decisions,  resulting  in  applicant  not  being  selected 
for promotion  to  lieutenant colonel.  He  was  first passed  over 
for lieutenant colonel by  the CY94A board, which  convened on or 
about 11 October 1994.  He was passed over the second time by the 
CY96C board, which convened on or about 8 July 1996. 
In conclusion, the error of applicant's  rating chain for h i s   1990 
and 1991 evaluations are clear, all his raters, additional raters 
and reviewers join in his request to correct his OPRs, and  such 
correction should be ordered by the BCMR to correct the injustice 
and prejudice to applicant. 

In support of the  appeal, applicant submits counsel's  statement 
and  statements  from the  rating chain members  of both  contested 
reports. 

Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

The applicant is currently serving on extended active duty in the 
grade of major. 

A similar application was submitted under AFI 36-2401, Correcting 
Officer and Enlisted Evaluation Reports.  The Evaluation Reports 
Appeal  Board was  not  convinced by  the applicant's  documentation 
and denied the appeal. 

Applicant  was  considered and  not  selected  for promotion  to  the 
grade  of  lieutenant  colonel  by  the  CY94A,  CY96C  and  CY97C 
Selection Boards  (there was no lieutenant colonel board in 1995). 
Applicant has a date of separation of 31 May 1999. 

OPR profile since 1990, follows: 

PERIOD ENDING 

EVALUATION OF POTENTIAL 

20 Feb 90 
*29 Jun 90 
*29 Jun 91 
29 Jun 92 
14 Jun 93 
14 Jul 94 
14 Jul 95 
14 Jul 96 
21 Mar 97 

Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 
Meets Standards 

*  Contested reports 
#  Top report at time of CY94A board. 

2 

98-01246 

AIR FORCE EVALUATION: 

The  Chief,  Appeals  and  SSB  Branch,  AFPC/DPPPA,  reviewed  the 
application  and  states  that  while  the  raters  and  additional 
raters believed the recommendations for PME and command position 
were prohibited, they point out, AFR  36-10, Chapter 3,  paragraph 
7a,  clearly  states  promotion  recommendations  are  prohibited; 
however, "recommendations to select for a particular assignment, 
PME,  augmentation, continuation, or indefinite reserve status are 
appropriate. .."  This would  include recommendations for command 
positions. 
They  state  that  the  raters'  statements  clearly 
indicate their support because the applicant believes the lack of 
PME  and  command  recommendations construes  a  very  weak  report. 
The  additional  raters  statements only  provide  statements to  be 
added to the contested reports.  None of the evaluators explain 
how  they  were  hindered  from  rendering  a  fair  and  equitable 
assessment  of  the  applicant's  duty  performance  and  potential. 
They find it interesting to note that both of the evaluators on 
the  29  June  1990  OPR  made  a  PME  recommendation,  and  the 
additional  rater  on  the  29  June  1991  OPR  made  a  command 
recommendation. 
They  further  state  that  there  is  no  clear 
evidence the  lack of  PME and command recommendations negatively 
impacted  the  applicant's  promotion  opportunity.  They  are  not 
convinced 
applicant's 
nonselections.  While  it  may  be  argued  that  the  omission  of  a 
recommendation  for  PME  and  command  position  was  inadvertent 
rather than intentional, the purpose of the appeal process is to 
correct  errors  or  injustices.  The  purpose  is  not  to  recreate 
history  or  to  enhance  one's  promotion  potential. 
Evaluation 
reports receive exhaustive reviews prior to becoming a matter of 
record.  Any  report can be rewritten to be more hard hitting or 
to  enhance  a  ratee's  potential.  But  the  time  to  do  that  is 
before  the  report  becomes  a matter  or  record.  Therefore, they 
recommend denial of applicant's request. 

contested 

OPRs 

the 

caused 

the 

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

d 

APPLICANT'S REVIEW OF AIR FORCE  EVALUATION: 
The  applicant's  counsel  reviewed  the  Air  Force  evaluation  and 
states: 

"First,  the  Air  Force  argues  that  applicant's  raters  and 
additional raters all want  to add language to the two contested 
OPRs, but that these raters and additional raters either were not 
confused at the time they wrote the OPRs, or should not have been 
confused  as  to  what  comments  they  could  or  could  not  have 
included.  However,  this misses  the point.  Even  if applicant's 

3 

L 

.c 

98-0124 6 

raters and additional raters should not have been confused as to 
what  comments they  could  have  included, they  clearly state now 
that  their  ratings  of  applicant  are  in  error  and  must  be 
corrected. 
The  Air  Force  has  not  and  cannot  deny  this. 
Applicant  may  not  be  penalized  for  his  raters'  and  additional 
raters'  error, even if the error was not reasonable.  This is not 
applicant's  fault, and  it  would  be  arbitrary  and  capricious  to 
refuse  to  correct  applicant's  OPRs  to  reflect  his  raters'  and 
additional raters'  true  intent  -  as  reflected  in  their  written 
statements  (and unrebutted by the Air Force).  This is precisely 
the function of the Air Force BCMR  -  to correct such injustices. 
Next, the Air Force claims that there is no "clear evidence" that 
the lack of PME and command recommendations in the two contested 
OPRs  negatively  impacted  applicant's  promotion  opportunity. 
However, the Air Force is being disingenuous.  The reason why no 
such  evidence  exists  is  because  (as is  required  by  Air  Force 
Regulations),  the  records  of  the  Central  Selection Boards  are 
destroyed after adjournment of the Board and announcement of the 
promotion  lists.  Therefore, there is no way  to tell,  from the 
notes and calculations of the Board members, how the lack of PME 
and command recommendations impacted their decision to pass over 
applicant to promotion to lieutenant colonel. 

In conclusion, the error of applicant's  rating chain for his 1990 
and 1991 evaluations are clear, all his raters, additional raters 
and reviewers join in his request to correct his OPRs,  and such 
correction should be ordered by the BCMR to correct the injustice 
and prejudice to applicant." 
Applicant's counsel's  complete response is attached at Exhibit E. 

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 
interest of justice to excuse the failure to timely file. 

the 

.. 

Insufficient  relevant  evidence  has  been  presented 
3 .  
demonstrate  the  existence  of  probable  error  or  injustice. 
took notice of the applicant's complete submission in judging 
merits  of  the  case;  however,  we  agree  with  the  opinion 
recommendation of the Air Force and adopt their rationale as 
basis  for  the  conclusion  that  the  applicant  has  not  been 
victim of  an error or injustice.  Therefore, in the absence 
evidence  to  the  contrary,  we  find  no  compelling  basis 
recommend granting the relief sought in this application. 

to 
We 
the 
and 
the 
the 
of 
to 

4.  The applicant's case is adequately documented and it has 
not 
been  shown  that  a  personal  appearance  with  or  without  counsel 

- 

4 

- 

98-01246 

will  materially  add  to  our  understanding  of  the  issue(& 
involved.  Therefore, the request for a hearing is not favorably 
considered. 

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 15 October 1998, under the provisions of AFI 
3 6 - 2 6 0 3 :  

~ 

Mr. Robert D. Stuart, Panel Chair 
Mr. Henry Romo, Jr. , Member 
Mr. Richard A. Peterson, Member 
Ms. Phyllis L. Spence, Examiner  (without vote) 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 

DD Form 149, dated 1 Feb 97, w/atchs. 
Applicantis Master Personnel Records. 
Letter, AFPC/DPPPA, dated 19 May 9 8 ,   w/atchs. 
Letter, AFBCMR, dated 15 Jun 9 8 .  
Counselis Response, dated 21 Jul 9 8 .  

ROBERT D. STUART 
Panel Chair 

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