RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  97-00449
            INDEX NUMBER:  107.00; 131.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

He be given a direct promotion to the grade of lieutenant  colonel  as
though selected by the Calendar Year  (CY)  1994A  (11  October  1994)
Central Lieutenant Colonel (JAG) Board.

___________________________________________________________________

APPLICANT CONTENDS THAT:

In July 1994, his supervisor recommended that he be awarded  the  Army
Commendation Medal (ARCOM); the award was approved by the commander on
28 July 1994.  The paperwork was forwarded for processing; however, he
never received confirmation of the award.

The ARCOM was also mentioned in his Officer Performance  Report  (OPR)
closing 6 August 1994.  He believes the  ARCOM  would  have  been  the
“discriminator”  that  would  have  resulted  in  his   selection   to
lieutenant colonel.

Applicant’s complete statement and documentary evidence in support  of
his appeal, are at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

On 22 April 1983, applicant was appointed a first lieutenant,  Reserve
of the Air Force, Judge  Advocate.   He  was  voluntarily  ordered  to
extended active duty on 26 April 1983.  He served on continuous active
duty, was integrated into the Regular component on 5 March  1990,  and
progressively promoted to the grade of major.

He was considered but not selected for  promotion  by  the  CY94A  and
CY95B Central Lt Col (JAG) Boards, which convened on 11  October  1994
and 27 November 1995, respectively.

On 30 June 1996, he was honorably discharged by reason of nonselection
for permanent promotion and transferred to the Air Force Reserve.   On
1 July 1996, he was appointed as major,  Reserve  of  the  Air  Force,
Judge Advocate.

Applicant’s OER/OPR profile follows:

    PERIOD CLOSING     OVERALL EVALUATION

      10 Jan 84  1-1-1
      10 Jul 84  1-1-1
      10 Jan 85  1-1-1
       7 Aug 85  1-1-1
       7 Feb 86  1-1-1
      12 Jun 86  1-1-1
      12 Jun 87  1-1-1
      13 Jan 88  1-1-1
      16 Dec 88  Education/Training Report (TR)
      13 Jan 89  Meets Standards (MS)
      13 Jan 90  MS
       6 Sep 90  MS
      10 Apr 91  MS
      10 Apr 92  MS
      10 Apr 93  MS
      30 Sep 93  MS
  *    6 Aug 94  MS
  #    6 Aug 95  MS
      27 May 96  MS
      30 Jun 98  MS (Non-EAD)

* Top report in file when considered and not selected for promotion by
the CY94 Lt Col (JAG) Board.

# Top report in file when considered and not selected for promotion by
the CY95 Lt Col (JAG) Board.

Documentation provided by the applicant reflects that  while  assigned
to a joint command, his supervisor (an Army officer)  recommended  him
for award of the Army Commendation Medal  (ARCOM)  for  the  period  3
December  1993  to  3 August  1994.   The  ARCOM  approval   authority
recommended  approval  on  28  July  1994  (see  award  recommendation
appended to applicant’s appeal at Exhibit A).

On 2 June 1997, applicant submitted an application to the  Army  Board
for Correction of Records requesting award of the ARCOM.  On  11 March
1999, the Army BCMR favorably considered his  appeal  and  recommended
his records be corrected to reflect award of the ARCOM for the  period
3 Dec 93 to 3 Aug 94 (see Exhibit J).

___________________________________________________________________

AIR FORCE EVALUATION:

The Appeals and SSB Branch, AFPC/DPPPA, reviewed this application  and
recommended denial based on the lack of evidence provided.

DPPPA noted that in applicant’s 2 June 1997 addendum to his appeal, he
stated that “To my knowledge an order was never issued, and I  believe
that the ‘citation’ is what is contained in the DA Form 638-1.”  DPPPA
did not concur with  this  statement,  stating  that  there  are  many
officers with ARCOM citations in their record.  Further, in order  for
the citations to be filed in these officers’ records, a special  order
must be published.  If there was no special order published  to  award
the applicant the ARCOM, then they must presume the  award  was  never
approved or awarded.  As such, without benefit of the  special  order,
they have no way to ascertain if the citation was authorized to be  on
file; i.e., was the special order dated before or after the board,  or
for that matter, ever approved?

The applicant could have written to the Board president of  the  CY94A
board regarding his nomination for the ARCOM if the special order  was
not published at least 60 days prior to the CY94A Board.  However,  he
did not exercise this  entitlement  for  either  the  CY94A  or  CY95B
boards.  In addition, DPPPA found no evidence  that  he  attempted  to
correct this error prior to his consideration by the CY95B board.

DPPPA did  not  support  applicant’s  request  for  direct  promotion,
stating absent clear-cut evidence the  applicant  would  have  been  a
selectee by the CY94A board, they believe  a  duly  constituted  board
applying the complete promotion criteria is in the  most  advantageous
position to render this vital  determination,  and  that  the  board’s
prerogative to do so should not be usurped except under  extraordinary
circumstances.  Instead, if he provides a copy of  the  special  order
for the ARCOM, and it is dated 60 or more  days  prior  to  the  CY94A
board, they would not object to promotion reconsideration by both  the
CY94A and CY95B boards.

The complete evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the advisory opinion,  applicant  stated  he  never
received a copy of the special order for the ARCOM.  However,  he  was
awaiting information from the Army BCMR and requested additional  time
to acquire further information.

As to  his  opportunity  to  communicate  with  the  Board  president,
applicant stated that while it is possible that notice was provided to
him, he does not recall receiving it.  He would have communicated with
the president not only regarding the ARCOM,  but  also  regarding  his
opportunity for promotion generally.

Applicant’s response is at Exhibit E.

By letter, dated 28 January 1999, applicant temporarily  withdrew  his
application for correction of his records pending a  decision  by  the
Army  Correction  Board  on  his  request  for  award  of   the   Army
Commendation Medal (Exhibit H).

By letter dated 23 March 1999, applicant provided a copy of  the  Army
BCMR’s decision with regard to his request  for  award  of  the  ARCOM
(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.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice warranting corrective action.
 After careful consideration of the applicant’s  complete  submission,
it appears that in July 1994, prior to the CY94A board, the  applicant
had been recommended and approved for award of the  Army  Commendation
Medal for meritorious achievement during the period 3 December 1993 to
3 August 1994.  However, for  whatever  reason  the  award  was  never
processed.  It is not certain what impact the absence  of  information
pertaining to the said award may have had on the  applicant’s  chances
for promotion to the grade of lieutenant  colonel.   However,  in  the
opinion of the majority of the Board, the applicant earned  the  award
and the members of the selection board should have had the benefit  of
this information.  Applicant’s request for  direct  promotion  to  the
grade of lieutenant colonel is duly noted.  However, the  majority  of
the Board believes a duly constituted selection  board,  applying  the
complete promotion criteria, is in the most advantageous  position  to
render this vital determination, and that its  prerogative  to  do  so
should only be usurped under extraordinary circumstances.   Therefore,
the majority of the Board finds that the most appropriate and  fitting
relief is to place the applicant’s  record  before  Special  Selection
Boards (SSBs) for  consideration  beginning  with  the  CY94A  Central
Lieutenant Colonel (JAG) Board and  any  subsequent  boards  to  which
entitled, with the Army Commendation Medal  included  in  the  record.
Accordingly, the majority of the Board recommends that the records  be
corrected as 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 the Army Commendation
Medal for the period 3 December 1993 to 3 August 1994 was accepted for
file in his Officer Selection Record on or before 1 October 1994.

      It is further recommended that he be considered for promotion to
the grade of lieutenant colonel by Special Selection  Board  beginning
with the CY94A (11 October  1994)  Central  Lieutenant  Colonel  (JAG)
Board and any  subsequent  boards  to  which  entitled  based  on  the
corrected record.

___________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 13 July 1999, under the  provisions  of  AFI  36-
2603:

      Ms. Cathlynn Sparks, Panel Chair
      Mr. George Franklin, Member
      Dr. Gerard B. Kauvar, Member

By a majority vote, the  members  voted  to  correct  the  record  and
recommended applicant be considered for promotion by Special Selection
Board (SSB) with the Army Commendation Medal included in  his  record.
Mr. Franklin voted to deny SSB consideration and  did  not  desire  to
submit a minority report.   All  members  voted  to  deny  applicant’s
request for direct promotion.  The following documentary evidence  was
considered:

     Exhibit A.  DD Form 149, dated 20 Jan 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPA, dated 22 Aug 97.
     Exhibit D.  Letter, SAF/MIBR, dated 22 Sep 97.
     Exhibit E.  Letter from Applicant, dated 17 Oct 97.
     Exhibit F.  Letter, AFBCMR, dated 20 Oct 98.
     Exhibit G.  Letter from Applicant, dated 6 Nov 98.
     Exhibit H.  Letter from Applicant, dated 28 Jan 99.
     Exhibit I.  Letter, AFBCMR, dated 9 Feb 99.
     Exhibit J.  Letter from Applicant, dated 23 Mar 99, w/atchs.





                                   CATHLYNN SPARKS
                                   Panel Chair



AFBCMR 97-00449




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 [APPLICANT], be corrected to show that the Army
Commendation Medal for the period 3 December 1993 to 3 August 1994,
be, and hereby was, accepted for file in his Officer Selection Record
on or before 1 October 1994 (attached).

      It is further directed that he be considered for promotion to
the grade of lieutenant colonel by Special Selection Board beginning
with the CY94A (11 October 1994) Central Lieutenant Colonel (JAG)
Board and any subsequent boards to which entitled based on the
corrected record.




                 JOE G. LINEBERGER
                 Director
                 Air Force Review Boards Agency

Attachment:
Dept of the Army Permanent Orders 235-01,
w/DA Form 4980-14