RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  94-03771
            INDEX CODE:  131.00

            COUNSEL:  NEIL B. KABATCHNICK

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The  Promotion  Recommendation  (PRF),  AF  Form  709,  prepared   for
consideration by the CY91B Lieutenant Colonel Board, which convened on
2 Dec 91, be replaced with a reaccomplished PRF containing an  Overall
Recommendation of "Definitely Promote” (DP).

His nonselections by the CY91B, CY92B,  CY93A,  and  CY94A  Lieutenant
Colonel Boards be set aside.

He be directly promoted to the grade of lieutenant colonel  as  though
selected by the  CY91B  Lieutenant  Colonel  Board,  and  that  he  be
provided all benefits associated with his promotion to  the  grade  of
lieutenant colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His 1991 PRF was materially and legally in error and unjust in that it
was rendered in violation of the spirit and letter  of  the  governing
regulation and, it did not  contain  an  accurate  assessment  of  the
applicant’s promotion potential as verified by the applicant’s  senior
rater.

His nonselections for promotion to the grade of lieutenant colonel was
materially  and  legally  in  error  and  unjust  in  that  they  were
precipitated by the erroneous and unjust aspects of the PRF.

In support of his appeal, the  applicant  provided  a  counsel  brief,
copies of the original and reaccomplished PRFs,  statements  from  the
senior rater and Management Level Evaluation Board  (MLEB)  President,
and other documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air  Force
on 27 May 76 and entered on extended active duty on 8 Nov 76.

On 30 Nov 96, the applicant was relieved from active duty and retired,
effective 1 Dec 96, in the grade of major.  He was  credited  with  20
years, and 23 days of active duty service.

Applicant's OER/OPR profile since 1986 follows:

      PERIOD ENDING    EVALUATION

      30 Jan 86  1-1-1
      31 Oct 86  1-1-1
      31 Oct 87  1-1-1
      31 Oct 88  Meets Standards
      31 Jul 89  Meets Standards
      31 Jul 90  Meets Standards
   # 31 Jul 91   Meets Standards
  ## 31 Jul 92   Meets Standards
 ### 31 Jul 93   Meets Standards
#### 15 Jun 94   Meets Standards
      15 Jun 95  Meets Standards
      15 Jun 96  Meets Standards


   # Top Report - CY91B (2 Dec 91) Lt Col Board.
  ## Top Report - CY92B (16 Nov 92) Lt Col Board.
 ### Top Report - CY93A (12 Oct 93) Lt Col Board.
#### Top Report - CY94A (11 Oct 94) Lt Col Board.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Evaluation   Boards   Section,   AFMPC/DPMAJEB,   reviewed   this
application  and  indicated  that  they  were  unable  to  detect  any
violation  of  the  governing  regulation.   In  DPMAJEB’s  view,  the
original  “corrected”  PRF  should  stand  since  the  MLEB  president
determined in his 6 Jun 94 letter that he could not support  a  change
to the original rating.  Air Force policy is very  specific  regarding
the change of overall promotion  recommendation  to  a  “DP”  and  the
applicant has not  complied  with  these  requirements.   Furthermore,
there have been no reported or confirmed irregularities of the CINCPAC
MLEB procedures to date.  There  has  been  no  evidence  provided  to
substantiate that the applicant received anything but  the  same  fair
and equitable treatment in the PRF and MLEB process  as  was  provided
each officer meeting the board.

A complete copy of the DPMAJEB evaluation is at Exhibit C.

The Promotion, Evaluation and Recognition Division, AFPC/DPPP reviewed
this application and, based  on  the  evidence  provided,  recommended
denial.  DPPP indicated that to effectively  challenge  the  promotion
rating on a PRF, it is necessary for the applicant to  garner  support
from both the senior rater and the Management Level  Evaluation  Board
(MLEB) president.  Applicant has provided a letter of support from his
senior rater, but has failed to gain support from the MLEB president.

Regarding the applicant's belief that  the  PRF  was  accomplished  in
violation of Air Force regulations, DPPP stated that they do not  find
this to be the case.  DPPP indicated that the relevant composition  of
an MLEB is required by AFR 36-10 to be made up of  senior  raters  (or
replacements of appropriate grade when necessary), and a president who
is an Air Force general officer. In this case, the applicant was in  a
joint command.  His senior rater was a naval  rear  admiral,  and  the
MLEB president was an Air Force lieutenant general.   The  applicant's
senior rater did not attend  the  MLEB,  but  sent  a  replacement  to
represent the applicant at the board.  Nowhere in any of the  evidence
provided by the applicant was  there  any  mention  of  a  significant
reason the representative was unable  to  appropriately  advocate  the
applicant at the MLEB.  In fact, the senior rater, in  his  letter  of
support,  stated  he  learned  everything  he   knew   regarding   the
performance of the applicant from  supervisory  sources  and  reports.
The applicant was geographically separated from the senior rater,  who
had no more contact with the applicant than the representative at  the
MLEB.  They were given no reason to believe  the  senior  rater  would
have had more impact on the applicant's  promotion  potential  had  he
gone to the MLEB.  If, in fact, the  senior  rater  was  available  to
attend the MLEB as he stated in his letter, and  was  truly  concerned
with the advocacy of the applicant by his replacement, they  found  it
logical that he would have attended.  Furthermore, a letter  from  the
MLEB president stated he reviewed the  circumstances  surrounding  the
request for  the  upgraded  PRF,  and  did  not  support  the  change.
According to DPPP, this indicated to them that the MLEB president  was
fully aware of the applicant's record, including the corrected PRF and
the opinion of the senior rater, but did not feel  it  merited  a  DP,
regardless of who attended the MLEB for the applicant.

A complete copy of the DPPP evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his initial response, counsel indicated that, on the basis  of  the
facts, evidence, points and authorities cited in the brief, the  Board
should reject and not utilize the DPMAJEB and DPPP  advisory  opinions
as a basis for the denial of relief; that the Board determine there is
before the Board that quantum of “convincing evidence to  warrant  the
determination  that  the  applicant  should  be  granted  the   relief
requested; that the Board determine that the record before  the  Board
depicts the “kind of error  and  injustice  that  cries(s)  aloud  for
relief and that Congress had in mind when creating correction boards”;
and therefore, in consonance with  the  Board’s  and  the  Secretary’s
“abiding moral sanction to determine, insofar as  possible,  the  true
nature of an alleged [error and/or] injustice and  to  take  steps  to
grant thorough and fitting relief, and  the  equitable  doctrine  that
“equity regards that as  done  which  ought  to  be  done,”  that  the
applicant be granted the  relief  requested  in  his  application,  as
amended, or that the applicant be granted a hearing and thereafter the
requested in his application, as amended.

Counsel’s  response,  two   subsequent   responses,   and   additional
documentary evidence are attached at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the  USAF  Officer  Evaluation  Board
Section,  AFPC/DPPPEB,  reviewed  this  application  and   recommended
denial.   According  to   DPPPEB,   counsel’s   claims   were   merely
argumentative at best and provided no proof that any violation of  the
Officer Evaluation System occurred in the case of the  applicant.   As
stated in the original advisory, the original PRF should stand.

A complete copy of the DPPPEB evaluation is at Exhibit G.

The Staff Judge  Advocate,  AFPC/JA,  reviewed  this  application  and
recommended denial.  JA indicated that, in their opinion,  DPPPEB  was
incorrect in its interpretation of the governing regulation as applied
to the facts in this case.  However, it is also their opinion that the
applicant has failed to present relevant  evidence  of  any  error  or
injustice warranting relief.

A complete copy of the JA evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel’s detailed response and additional documentary evidence are
attached at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  probable  error  or  injustice.   The  applicant's
complete submission was thoroughly reviewed, including  the  statement
from the senior rater, and his contentions  concerning  the  contested
PRF were  duly  noted.   However,  we  do  not  find  the  applicant’s
assertions and the documentation presented in support  of  his  appeal
sufficiently persuasive to override  the  rationale  provided  by  the
office of the Staff Judge Advocate (AFPC/JA) concerning these  issues.
Therefore, in the absence  of  evidence  to  the  contrary,  we  adopt
AFPC/JA’s rationale and conclude that no  basis  exists  to  recommend
granting the relief sought in this application.

4.  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 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 22 Jun 99, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Mr. Timothy A. Beyland, Member
      Mr. Joseph G. Diamond, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Aug 94, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFMPC/DPMAJEB, dated 21 Apr 95.
    Exhibit D.  Letter, AFPC/DPPP, dated 6 Dec 95.
    Exhibit E.  Letter, SAF/MIBR, dated 22 Dec 95.
    Exhibit F.  Letters, counsel, dated 6 Jun 96, 24 Jul 96,
                and 6 Dec 96, w/atchs.
    Exhibit G.  Letter, AFPC/DPPPEB, dated 23 Dec 97.
    Exhibit H.  Letter, AFPC/JA, dated 27 Feb 98.
    Exhibit I.  Letter, SAF/MIBR, dated 16 Mar 98.
    Exhibit J.  Letter, counsel, dated 10 Dec 98, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair