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


IN THE MATTER OF:                       DOCKET NUMBER: 95-01906
                                        INDEX CODE  110.03  111.05
                                        COUNSEL:

                                        HEARING DESIRED:  Yes

_________________________________________________________________

RESUME OF CASE:

In an application dated 10 May  1995,  applicant  requested  that  the
comments in Blocks III, IV and VI of the  Officer  Performance  Report
(OPR) closing 6 February 1990 be removed, he be given consideration by
SSB for the Calendar Year 1992C (CY92C), CY93B, and CY94A boards,  his
separation under the Voluntary Separation Incentive (VSI)  program  be
canceled and  he  be  reinstated  into  the  Regular  Air  Force.   On
10 September 1996, the Board considered and denied his requests.

In a letter dated 23  February  1997,  applicant  provided  additional
documentation pertaining to  his  contention  that  miscounseling  and
unclear guidance facilitated his unwanted departure from the military.
He requested reconsideration. Tabs 1 through 4 of his  submittal  were
new documents. Also included was another statement from the  major  at
his former military personnel flight  (MPF),  who  affirmed  that  the
applicant received negligent counseling and unclear guidance.  Tabs  5
through 8 were previously submitted with Exhibit A. On 3  March  1998,
the Board again denied the applicant’s appeal.

A complete copy of the Addendum to  Record  of  Proceedings  (ROP)  is
attached at Exhibit P.

The applicant has now retained counsel, who  provides,  in  part,  the
questions and results of a polygraph exam. [The  polygrapher’s  letter
indicates  the  applicant  “showed  responses  usually  indicative  of
truthfulness when answering “yes” to the  listed  questions.]  Counsel
also submits documents which he asserts shows the  applicant  was  the
only PA [Public Affairs] captain in the entire Air Force who  took  an
early out in 1995.  The  Personnel  “experts”  were  dealing  with  an
unusual but not extraordinary situation---there are thousands of prior
service officers in the Air Force. The NCOs and officers in  Personnel
had an obligation to be aware of the possibility [of a 15-year point].
Faced with a complete inability to get straight  answers  despite  his
best efforts and with the clock ticking  out  his  final  active  duty
hours, the applicant did what any reasonable person would have done by
making what apparently was the best decision.  But it was by no  means
“voluntary;” it was  forced  on  him  by  the  failure  of  others  to
correctly brief him in a timely manner. Whether  these  failures  were
due to vindictiveness or ignorance, made in an honest attempt to  help
him or otherwise, is irrelevant. Several days before he had to  leave,
the applicant found out that he may  have  been  misled.  However,  he
didn’t withdraw his [VSI] because his Vice Wing Commander told him  it
would do no good. As a captain, the applicant trusted  the  Vice  Wing
Commander and, at this point, believed his choices were limited to VSI
or severance pay. Counsel asks for a formal hearing and for the  Board
to forward a questionnaire to the  supervisor  for  his  side  of  the
story.

Counsel’s complete submission, with attachments, is at Exhibit Q.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, HQ USAF/JAG, reviewed the applicant’s
latest submission and notes that “applicant is no  longer  challenging
the OPR.” The author discusses why applicant’s latest submission  does
not meet the criteria for reconsideration. The  author  further  notes
that it is clear from the applicant’s 7 November  1994  memo  to  AFPC
that, prior to accepting VSI,  he  apparently  believed  he  had  been
acting, at least in part, upon misinformation. Yet possessed  of  this
belief he nevertheless decided not to request withdrawal  of  his  VSI
application. It  is  reasonable  to  conclude  that  in  doing  so  he
manifested an intent to receive the VSI and leave active  duty.  While
he asserts he did not know even then that he could apply for a 15-year
retirement, his  behavior  in  accepting  VSI  is  consistent  with  a
voluntary decision not to explore the extent  to  which  he  had  been
misinformed and instead to receive the VSI and enter the Reserves. The
author does  not  believe  that  the  apparent  comment  by  the  Vice
Commander as to the applicant’s likelihood  of  success  would  render
involuntary a  similar  decision  by  a  reasonable  person  similarly
situated. Reconsideration should not be granted and,  if  it  is,  the
merits of the case do not warrant relief.

A copy of the complete additional evaluation is at Exhibit R.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATIONS:

Counsel addressed the OPR issue by providing a  16  August  1991  memo
from the former  Director  of  Academics,  Defense  Equal  Opportunity
Management Institute (DEOMI), Patrick AFB,  to  the  Deputy  Assistant
Secretary of Defense (Civilian Personnel Policy & Equal  Opportunity).
The former Deputy requested a commander’s inquiry regarding the  DEOMI
Commandant [who had been the rater of the applicant’s contested 6  Feb
90 contested report]. The former Director indicated  he  believed  the
rater was guilty  of  practicing  racism,  sexism,  prejudice,  double
standards, favoritism, and harassment of  personnel  assigned  to  the
Institute. Counsel  believes  that  this  information  may  well  have
changed the Board’s mind about the OPR if  it  could  have  been  made
available earlier. The former Deputy also  included  a  25  June  1999
cover letter, with a copy of his own OPR, in support of the applicant.

Counsel asserts that the Board should consider the  polygraph  results
and  the  demographic  information,  forward  the   inquiry   to   the
applicant’s supervisor, and grant  the  applicant  a  formal  hearing.
Further, the Vice Wing Commander’s advice that led  to  the  applicant
not  withdrawing  his  VSI  request  was  a  sufficiently  significant
intervening event that excuses his not taking this last  minute  step.
Under the circumstances that existed at  that  time,  the  applicant’s
actions were those of any reasonable person in his situation.

Counsel’s complete response, with attachments, is at Exhibit T.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

After again considering all aspects of  this  case,  the  evidence  of
record, and the arguments of counsel and the Air  Force,  we  find  no
compelling basis upon which to overturn the two previous denials.  The
applicant did have the correct information he needed in time  to  have
withdrawn his VSI application. He chose not to withdraw it, and he has
not provided persuasive evidence that he was forced  out  of  the  Air
Force because  of  misinformation,  coercion,  or  other  “significant
intervening event.” The Vice Wing Commander’s alleged comment that “it
would do no good” for the applicant to withdraw his VSI application is
ambiguous and, in any event, we fail  to  see  how  it  prevented  the
applicant from withdrawing his application when he had the option  and
the time to do so. Counsel’s request that we contact  the  applicant’s
former supervisor for the purpose of obtaining  a  statement  is  duly
noted. However, we are not an investigative body. The burden of  proof
rests  with  the  individual  applicant  who  must  establish  to  our
satisfaction that the relief sought  should  be  granted.  Turning  to
counsel’s comments regarding the contested 6  February  1990  OPR,  we
note he asserts that the applicant had been  seeking  [the  16  August
1991 memo from the former Director of Academics,  DEOMI]  “for  years”
and that this information “might well have changed  the  Board’s  mind
about the OPR if it could have been made available earlier.”  We  find
this most interesting. For counsel’s information, that  memo  and  the
related documents were submitted by  the  applicant  in  his  original
appeal.  It is  even  identified  in  the  “Applicant  Contends  That”
section of the 24 September 1996 ROP as supporting documentation. Also
provided by the applicant was a  handwritten  tasking  memo  from  the
Deputy Assistant Secretary of Defense regarding this 1991 memo.  Thus,
these documents were available and reviewed by the Board when the case
was originally considered  in  1996  and  reconsidered  in  1998.   In
summary, the applicant still has not provided convincing  evidence  to
sustain his burden of having suffered either an error or an  injustice
and we again recommend this appeal be denied.

The documentation provided with this case was sufficient to  give  the
Board a clear understanding of the  issues  involved  and  a  personal
appearance, with or without legal counsel, would not  have  materially
added to that understanding.  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 26 August 1999, under the provisions of  AFI  36-
2603:

                  Mr. David C. Van Gasbeck, Panel Chair
                  Mr. Jackson A. Hauslein, Member
                  Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

   Exhibit P.  Addendum ROP, dated 31 Mar 98, w/atchs.
   Exhibit Q.  Applicant's Letter, dated 23 Mar 99, w/atchs.
   Exhibit R.  HQ USAF/JAG Letter, dated 20 Apr 99.
   Exhibit S.  AFBCMR Letter, dated 3 May 99.
   Exhibit T.  Applicant’s Letter, dated 29 Jun 99, w/atchs.




                                   DAVID C. VAN GASBECK
                                   Panel Chair