RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  96-02697
            INDEX CODES:  111.O1, 131.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonselections for promotion to the grade of lieutenant colonel  be
declared null and void.

His Officer Performance Report (OPR) closing 21  Aug  93  be  declared
void and removed from his records, and the attached reaccomplished OPR
be accepted for file in its place.

The  Promotion  Recommendation  (PRF),  AF  Form  709,  prepared   for
consideration by the CY94A Lieutenant Colonel Board, which convened on
11 Oct 94, be upgraded to a “Definitely Promote.”

He be promoted to the grade of lieutenant colonel as  though  selected
by the CY94A Lieutenant Colonel Board, which convened on 11 Oct 94.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His record was in error when he was considered by the CY94A Lieutenant
Colonel Board.

The contested OPR was not an accurate or just portrayal  of  his  duty
performance.  The reviewer of the report confirmed that  the  omission
was “unintentional,” but certainly he should not bear the  consequence
of an “unintentional” error made by his reporting officials.

Illegal actions by the Management Level Evaluation Board  (MLEB)  made
it impossible for him to compete fairly for one of  the  illegal  “Top
Promote” recommendations which were critical at  the  1994  Lieutenant
Colonel Board.

The central board which considered his record  was  held  contrary  to
statute and DOD directive.

A Special Selection Board (SSB) cannot provide him a full  measure  of
relief.

In support of his appeal, the applicant provided a  detailed  personal
statement, several supporting statements, a copy of the reaccomplished
OPR, and other documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently on active duty in the grade of  major,
having been promoted to that grade on 1  Apr  91.   His  Total  Active
Federal Military Service Date (TAFMSD) is 21 Jun 79.

Applicant's OER/OPR profile since 1986 follows:

      PERIOD ENDING    EVALUATION

       8 Jul 86  1-1-1
      29 Jan 87  1-1-1
      29 Jan 88  1-1-1
      29 Jan 89  Meets Standards
      14 Jun 89  Meets Standards
      14 Jun 90  Meets Standards
      14 Jun 91  Meets Standards
      31 Jan 92  Meets Standards
      31 Jan 93  Meets Standards
 *   21 Aug 93   Meets Standards
 #    1 Jun 94   Meets Standards
      15 Jan 95  Meets Standards
##   15 Jan 96   Meets Standards

* Contested Report.

    # Top Report - CY94A (11 Oct 94) Lt Col Board.
   ## Top Report - CY96C (8 Jul 96) Lt Col Board.

_________________________________________________________________

AIR FORCE EVALUATION:

The Evaluation Boards Section, AFPC/DPPPEB, reviewed this  application
and indicated that the original PRF should stand since  the  applicant
provided no evidence  to  show  he  received  anything  but  fair  and
equitable treatment in the PRF process.   According  to  DPPPEB,  they
thoroughly reviewed  the  PRF  and  determined  that  it  was  written
according  to  the  directive  and  was   in   compliance   with   all
requirements.

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

The  Evaluation  Procedures  Section,   AFPC/DPPPEP,   reviewed   this
application  and  recommended  denial.   According  to   DPPPEP,   the
contested OPR went through several review processes, and while perhaps
not a strong report, the applicant has not proven it to be  unjust  or
technically flawed.  The rewritten OPR was not prepared on the correct
form and it did not merely add information omitted from  the  original
report; it was a complete revision designed to rewrite  history.   The
letters submitted by the evaluators on the applicant’s behalf  do  not
state the additional accomplishments were  unknown  at  the  time  the
report  was  written.   In  fact,  the  opposite  was  cited  by  both
evaluators, and the rater clearly stated he  rewrote  the  OPR  in  an
effort  to  “illuminate,  expand,   and   clarify”   the   applicant’s
contributions.

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

The Selection Board Secretariat, AFPC/DPPB, reviewed this  application
and addressed  the  contentions  pertaining  to  “Defective  Selection
Boards.”  In DPPB’s view,  the  application  contained  faulty  logic,
incorrect      statements,      accusations       without       merit,
directives/statute/regulations taken out of  context,  and  was  fully
unfounded.

A complete copy of the DPPB evaluation is at Exhibit E.

The Appeals and SSB Branch, AFPC/DPPPA, reviewed this application  and
indicated that, based on the evidence provided, they recommend denial.

A complete copy of  the  DPPPA  evaluation,  with  attachment,  is  at
Exhibit F.

The Staff Judge  Advocate,  AFPC/JA,  reviewed  this  application  and
recommended denial.  In JA’s opinion,  the  applicant  has  failed  to
present relevant evidence of any error or injustice requiring relief.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a detailed  response  to  the  Air  Force  advisory
opinions, as well as additional documentary evidence for  the  Board’s
consideration (Exhibit I).

Applicant provided a subsequent response  and  additional  documentary
evidence, which are attached at Exhibit J.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the  Board’s  request,  the  Evaluation  Programs  Branch,
AFPC/DPPPE, reviewed this application and  recommended  that  the  OPR
closing 21 Aug 93 stand.  Despite his claims, there was  no  proof  to
support  the  applicant’s  assertion  that  the  report  was  prepared
inappropriately.   Rewording  of  a   report   after   the   promotion
nonselection is not  grounds  to  provide  an  officer  a  chance  for
subsequent promotion which was not provided to others.  With no change
to his record, or support from his senior rater  and  MLEB  president,
DPPPE recommended that the original PRF stand as well.

A complete copy of the DPPPE evaluation is at Exhibit K.

The Selection Board Secretariat, AFPC/DPPB, reviewed  the  applicant’s
rebuttals, and indicated that they failed to provide any new  evidence
to support his contentions.  Furthermore, they also stand by their  no
records response to a Freedom of Information Act (FOIA) request.

A complete copy of the DPPB evaluation is at Exhibit L.

The Appeals and SSB Branch, AFPC/DPPPA, indicated that they  stand  by
their original advisory opinion and have nothing more to add.  The new
evidence the applicant provided to document his appeal  was  virtually
identical to that which  they  have  repeatedly  reviewed  with  other
appeals and  have  found  to  be  nothing  more  than  unsubstantiated
conjecture, wholly without merit.

A complete copy of the DPPPA evaluation is at Exhibit M.

The Staff Judge Advocate, AFPC/JA, indicated that they reaffirm  their
original advisory.  They would just add that since that  advisory  and
since the  applicant’s  rebuttals,  the  Court  of  Appeals  issued  a
decision upholding the integrity of the Air  Force  promotion  system.
In JA’s view, the applicant’s arguments  are  without  merit;  he  has
failed  to  present  relevant  evidence  of  any  error  or  injustice
warranting relief.  Accordingly, they recommend denial.

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

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant provided a detailed response to  the  additional  Air  Force
advisory opinions, as well as additional documentary evidence for  the
Board’s consideration (Exhibit P).

_________________________________________________________________

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  and  his  contentions
concerning the contested OPR and PRF, his consideration for  promotion
by the selection board in  question,  and  the  promotion  process  in
general were duly noted.  However, a majority of the  Board  does  not
find the applicant’s assertions and  the  documentation  presented  in
support  of  his  appeal  sufficiently  persuasive  to  override   the
rationale provided by the Air Force offices of primary  responsibility
(OPRs)  concerning  these  issues.   Therefore,  in  the  absence   of
sufficient evidence to the contrary, the Board  majority  agrees  with
the recommendations of the OPRs and adopt their rationale as the basis
for its decision that the applicant has failed to sustain  his  burden
of establishing that he has suffered either an error or an  injustice.
Accordingly, the applicant’s requests are not favorably considered  by
a majority of the Board.

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.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 Mar 99, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Mr. John E. Pettit, Member
      Mr. Gregory W. DenHerder, Member

By  a  majority  vote,  the  Board  voted   to   deny   the   request.
Mr. DenHerder voted to recommend that the applicant’s OPR  closing  21
Aug 93 be voided and replaced with a reaccomplished report, and,  that
he  be  given  SSB  consideration  with  his  corrected  record.   Mr.
DenHerder submitted a minority report which is attached at Exhibit  Q.
The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Sep 96, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPEB, dated 27 Sep 96.
    Exhibit D.  Letter, AFPC/DPPPEP, dated 8 Oct 96.
    Exhibit E.  Letter, AFPC/DPPB, dated 17 Oct 96.
    Exhibit F.  Letter, AFPC/DPPPA, dated 24 Oct 96.
    Exhibit G.  Letter, AFPC/JA, dated 8 Jan 97.
    Exhibit H.  Letter, SAF/MIBR, dated 27 Jan 97.
    Exhibit I.  Letter, applicant, dated 27 Feb 97, w/atchs.
    Exhibit J.  Letter, applicant, dated 18 Jul 97, w/atchs.
    Exhibit K.  Letter, AFPC/DPPPE, dated 12 Aug 98.
    Exhibit L.  Letter, AFPC/DPPB, dated 22 Sep 98.
    Exhibit M.  Letter, AFPC/DPPPA, dated 8 Oct 98.
    Exhibit N.  Letter, AFPC/JA, dated 6 Nov 98.
    Exhibit O.  Letter, SAF/MIBR, dated 23 Nov 98.
    Exhibit P.  Letter, applicant, dated 22 Jan 99, w/atchs.
    Exhibit Q.  Minority Report.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair





AFBCMR 96-02697






MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                       FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.  Notwithstanding this,
I would be inclined to reconsider the portion of his application
requesting that the Officer Performance Report (OPR) closing 21 Aug 93
be voided and replaced with a reaccomplished OPR, providing he submits
the reaccomplished OPR on the appropriate form.

      Please advise the applicant accordingly.




                                           JOE G. LINEBERGER
                                           Director
                                           Air Force Review Boards
Agency




AFBCMR 96-02697





MEMORANDUM FOR THE DIRECTOR, AIR FORCE REVIEW BOARDS AGENCY

SUBJECT:  Minority Report, APPLICANT

      I am not in agreement with the majority of the Board’s
recommendation to deny the applicant’s request that his Officer
Performance Report (OPR) closing 21 Aug 93 be declared void and
removed from his records and replaced with a reaccomplished report.

      The reason for my dissent with regard to this matter are the
statements from the members of the applicant’s rating chain.  These
individuals are in strong support of the applicant’s appeal to have
the contested report replaced with a reaccomplished report.  Both the
rater and the additional rater have indicated that the original OPR
was not an accurate portrayal of the applicant’s duty performance or
significant contributions to the command and the mission.  The rater
stated that at the time the original report was prepared, he was not
aware than an expansion of the report was necessary.  The additional
rater indicated that the omitted accomplishments were the result of
inter-service differences in officer performance report criteria.
With regard to this, it should be noted that the rater and additional
rater were Army officers.  In my view, it is reasonable to believe
that their lack of familiarity with the preparation of OPRs peculiar
to the Air Force, and its importance, may have impacted the
applicant’s promotion opportunity.  In addition, both individuals have
indicated that a recommendation for selection to a senior service
school was also inadvertently excluded.  In view of the above, it is
my opinion that any doubt concerning the accuracy of the contested
report be resolved in the applicant’s favor.  I recommend that the OPR
closing 21 Aug 93 be replaced with the reaccomplished OPR and that the
applicant be given appropriate Special Selection Board consideration
with his corrected record.




                                           GREGORY W. DENHERDER
                                               Panel Member