RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01878 (Cs #4)
                 INDEX CODE 131.01  131.07
                             COUNSEL:  None

                       HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His nonselection  for  promotion  to  the  grade  of  lieutenant
colonel (LTC) by the Calendar Year 1997C  (CY97C)  board  be  declared
void.

2.    He be given consideration by Special Selection Board  (SSB)  for
the CY97C board with the following corrections made to his records:

            a.  The AF Form 77, Supplemental Evaluation Sheet, stating
“No report available for the period of 1 Jun  94  through  9  Jun  95.
Officer restored to active duty by direction of the Secretary  of  the
Air Force under AFI 36-2603” be removed, and the  reporting  dates  on
the previous  and  subsequent  Officer  Performance  Report  (OPR)  be
adjusted.

            b.  The “Corrected Copy” annotations on the  OPRs  closing
14 October 1991, 14 October 1992, 6 September 1993, and 31 May 1994 be
removed or made to comply with the “new” AFPC standard.

            c.  The Promotion Recommendation Form  (PRF)  reviewed  by
the CY97C board  reflect  an  overall  recommendation  of  “Definitely
Promote (DP).”

3.    If his record cannot be made  whole  for  an  SSB,  then  he  be
promoted to the grade of LTC as if selected by the CY97C board.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He has proven he was separated in error and, as a result,  his  record
simply cannot compete fairly in  any  competitive  selection  process.
Not only does his file now contain a record of an  unnecessary  “break
in service,”  it  also  is  peppered  with  various  “corrected  copy”
annotations which only draw attention to  the  supposedly  “corrected”
documents. Both his senior rater and  Management  Level  Review  (MLR)
president confirm that his record of service was tainted and the CY97C
PRF should  reflect  a  “DP”  recommendation.  His  senior  rater  has
provided his first-hand assessment of the  [adverse  and  prejudicial]
impact that  the  contested  AF  Form  77  and  the  “corrected  copy”
annotations had on his chances at the carryover portion  of  the  MLR;
i.e., no “DP” recommendation on the PRF.

In support, he provides statements from the CY97C PRF senior rater and
MLR president, as well as related documents.

A copy of applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of  LTC
with a date of rank (DOR) of 1 October 1998. He was selected above-the-
promotion zone (APZ) by the CY98B LTC board which convened on  1  July
1998.

This is the applicant’s  fourth  application.  The  first  appeal  was
resolved by AFPC under their delegated authority with an SSB  for  the
CY92C major board.  The  applicant  was  selected  for  promotion  but
nonselected for Intermediate Service School (ISS)  candidacy.  Details
of this case are contained in the HQ AFPC/DPPPA advisory at Exhibit E.
Information concerning the second and third applications,  which  were
considered by the AFBCMR, is contained in the  Record  of  Proceedings
(ROPs) provided at Exhibit C. Additional details are contained in  the
HQ  AFPC/DPPPA  and  HQ  AFPC/JA  advisories  at  Exhibits  E  and  F,
respectively.

The  remaining  relevant  facts  pertaining  to  this   and   previous
applications, extracted from the  applicant's  military  records,  are
contained in the official documents provided by the applicant  and  in
the letters prepared by the appropriate  offices  of  the  Air  Force.
Accordingly, there is no need to recite these facts in this Record  of
Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief of Operations, Selection Board  Secretariat,  HQ  AFPC/DPPB,
indicated that the applicant’s contentions are  without  merit.  Board
members are briefed, prior to scoring records, that an AF Form 77  can
stand alone in a record for three reasons:  to  document  a  break  in
service, to correct an administrative error, and as the result  of  an
approved appeals action. They are instructed to view the  form  simply
for what it is, a period of time not covered by a report.

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

The Chief, Appeals and SSB Branch, HQ AFPC/DPPPA, provides  background
information on the applicant’s circumstances and previous cases, which
led up to the instant appeal. Absent clear-cut evidence the  applicant
would have been a selectee by the CY97C board, the  Chief  believes  a
duly constituted board applying the complete promotion criteria,  with
selection  records   constructed   in   accordance   with   regulatory
requirements, is in the most  advantageous  position  to  render  this
vital determination. Direct promotion is not  supportable.  The  Chief
does not understand the purpose behind the applicant’s appeal  of  the
contested PRF, especially since he also requests a  direct  promotion.
[The applicant requests direct promotion if his records cannot or will
not be corrected in the manner he desires.] To  directly  promote  the
applicant would circumvent the competitive  nature  of  the  promotion
process. The senior rater supports removal of the AF Form 77, but does
not request upgrading the PRF to “DP.”   The  MLR  president  supports
removal of the AF Form 77 and upgrading the PRF to “DP.”  Both believe
the applicant would have received a “DP” in the carryover board if  it
had not been for the AF Form 77.  By  regulation,  all  time  must  be
accounted for either by an OPR, training report, or AF  Form  77.  The
senior rater of the contested CY97C PRF is the same senior  rater  who
gave the applicant a “DP”  recommendation  on  the  CY98B  PRF,  which
attributed to his promotion APZ. The senior rater obviously considered
his original decision not to give the  applicant  a  “DP”  sound,  and
still does not consider the applicant’s record better  than  those  to
whom he awarded a “DP.”  As  for  the  annotations,  for  audit  trail
purposes there has to be some annotation on evaluation reports. In the
past, the annotation was placed on the front  of  the  report  in  the
margin. The location of the correction statement has been adjusted  so
it is not so obvious to board members. It is  vitally  important  that
the “corrected copy” annotation remain. His case is not unique; others
have been selected for promotion with these annotations  and  AF  Form
77s in their records. Promotion boards are  briefed  that  a  negative
connotation should not be drawn from these annotations. Correcting the
previous and subsequent OPRs to cover the undocumented period  is  not
feasible. The applicant was not assigned to the  evaluators  concerned
during  the  undocumented  period  and,  in  effect,  this  would   be
falsifying the two OPRs concerned. He was promoted  by  SSB  to  major
with annotations on his top two OPRs, and subsequently promoted APZ to
LTC with the AF Form 77 and four OPRs with annotations in his records.
He was “made whole” when he was retroactively promoted to major by the
CY92C SSB and APZ to LTC. Denial is recommended.

A copy of the complete evaluation is at Exhibit E.

The Senior Attorney-Advisor, HQ AFPC/JA, and opines that most  of  the
applicant’s  argument  is   unsupported   supplication   that   hardly
establishes the existence of any prejudicial error.  On close
review, it is apparent that both senior officers  talk  in  less  than
equivocal terms when speculating about the possible impact the AF Form
77 may have had on the MLR’s decision not to give the pplicant a  “DP”
recommendation. The senior rater was able to directly  communicate  to
the MLR the reasons the form was in the applicant’s file. MLRs  are  a
much more open forum than are promotion boards. Members are instructed
to openly discuss records before scoring them. If a question arises or
someone has a “suspicion” regarding a gap in service, those  questions
can and usually are answered. The applicant is relying on  speculation
as  to  the  reason  he  did  not  get  a  “DP.”    His   allegations,
suppositions, and “what if” scenarios fall far short of  “irrefragable
proof,” and Federal  Courts  require  such  proof  in  the  record  to
overcome the  presumption  of  regularity  of  the  proceedings.   The
“corrected  copy”  annotations  were  added  in  accordance  with  the
guidance set out in AFR 31-11 (15 Mar 90) and AFI 36-2401 (3  Jun  94)
and is a common occurrence.  This language serves  as  protection  for
the individual. The fact that procedures might change, as  alluded  to
by the applicant, does not imply that the previous process was  flawed
or that it caused problems. The other points of error  raised  by  the
applicant have been mooted by his promotion to LTC. The only  question
left to be addressed is whether his DOR should be adjusted to  reflect
promotion in the promotion zone. The Advisor  concludes  it  would  be
inappropriate to adjust the applicant’s DOR as the applicant  has  not
suffered any legal error or injustice. Denial is recommended.

A copy of the complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was separated as a result of his initial nonselections  for  major.
He was subsequently selected for major and reinstated to  active  duty
by the Board, but only after a year-long break in service. He asks the
Board to finish correction of the errors in his  file  which  resulted
because  of  his  initial,  erroneous  nonselection  for   major   and
separation. The AF Form  77  documents  a  “break  in  service”  which
occurred through no fault of his own. He discusses  why  the  form  is
prejudicial both from the perspective of the  regulation  and  of  the
board members who view it. If the  “corrected  copy”  annotations  are
removed for SSBs, it is equally imperative that they  be  removed  for
central boards and MLRs.  He asks that these reports be  corrected  to
comply with the “new” AFPC standard; DPPA, the OPR,  actually  imposes
no objection. He argues why the [CY97C]  PRF  should  be  upgraded  to
“DP.”

A copy of his complete response, with attachments, is at Exhibit H.
_________________________________________________________________

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  to  warrant  partial
relief. We note an investigation revealed the applicant’s senior rater
had used improper procedures to prepare the PRF for  the  CY92C  major
board.   A  new   senior   rater   upgraded   that   PRF’s   promotion
recommendation to a “DP” and the applicant,  who  had  been  separated
from active duty on 31 August 1994 for nonselection, was selected  for
major in November 1994 by SSB for the CY92C board. Subsequent  to  his
successful AFBCMR appeal, he was reinstated to active duty on 6  April
1995 and was ultimately selected for LTC APZ by the  CY98B  board.  He
contends, in part, that his  unnecessary  break  in  service  and  the
annotated documents in his records caused the MLR board not  to  award
him a “DP” on the CY97C PRF and the promotion board not to select  him
for LTC.  While we normally would have agreed  with  the  Air  Force’s
arguments regarding the AF Form 77 comments and the  “Corrected  Copy”
annotations,  the  applicant’s  unjust  separation  from  active  duty
constitutes a mitigating factor warranting special  intervention.   In
this regard, we are convinced that had he not been forced to  separate
in 1994, speculations as to whether or not the  CY97C  MLR  board  was
prejudiced by his break in service would not be an  issue  today.  The
applicant’s separation was directly caused by  a  superior’s  improper
actions, the ripple effect of which  may  have  resulted  in  his  not
receiving full and fair consideration by the CY97C MLR  and  promotion
boards. We have no basis on which to question  the  integrity  of  the
CY97C senior rater and the MLR president, who both  contend  that  the
MLR’s prejudice could not be overcome. Further, despite being APZ, the
applicant’s performance record was strong enough to earn  him  a  “DP”
and  promotion  to  LTC.  Consequently,  we  are  persuaded  that  had
circumstances been different the CY97C MLR board may  very  well  have
awarded him a “DP,” which in turn would have  enhanced  his  promotion
opportunity when he was considered IPZ.  We  therefore  recommend  the
CY97C  PRF  be  upgraded  to  reflect  a  “DP”  recommendation.    The
applicant’s request to remove the contested AF Form 77 and  alter  the
previous  and  subsequent  OPR  dates  was  noted  but  not  favorably
considered. We believe the AF Form 77 should not  be  voided  entirely
because a member’s time must be accounted for. However, in view of the
special circumstances discussed above, we  recommend  the  remarks  in
Section  III  be  expanded  so  that  future  boards  will  know   the
applicant’s break in service clearly was  not  his  fault.  With  this
reasoning, and to offset the possibility of any further injustice,  we
also  conclude  that  the  “Corrected  Copy”  annotations  should   be
indicated on the
documents in question as directed in AFI 36-2401,  Table  4,  Note  2,
i.e., on the bottom, reverse margin. In addition to  recommending  his
records be  corrected  as  indicated  below,  we  also  recommend  the
applicant be given promotion consideration for  LTC  by  SSB  for  the
CY97C board.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  The Overall Recommendation on the  Promotion  Recommendation
Form, AF Form  709,  reviewed  by  the  Calendar  Year  1997C  (CY97C)
Lieutenant Colonel Central Selection Board be changed  from  “Promote”
to “Definitely Promote.”

      b.  The remarks in Section  III  of  AF  Form  77,  Supplemental
Evaluation Sheet, closing 9 June 1995, be declared void  and  replaced
with “No report available for the period 1 Jun 94 through 9 Jun 95 due
to a break in service which was the direct result of an error  on  the
part of the Air Force. Officer restored to active duty by direction of
the Secretary of the Air Force under AFI 36-2603.”

      c.  The “Corrected Copy” annotations on the following  documents
be moved to the bottom, reverse margin, in  accordance  with  AFI  36-
2401, Table 4, Note 2:  AF Form 707A, Field Grade Officer  Performance
Reports closing 14 October 1991, 14 October  1992,  6 September  1993,
and 31 May 1994;  and  AF  Form  77,  Supplemental  Evaluation  Sheet,
closing 9 June 1995.

It is further recommended that he be considered for promotion  to  the
grade of lieutenant colonel by a Special Selection Board for the CY97C
Central Lieutenant Colonel Board.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 23 September 1999, under the provisions of AFI 36-
2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Mr. Charles E. Bennett, Member
                  Mr. Jackson A. Hauslein, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 Jul 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  ROPs dated 15 Mar 94 & 12 Apr 95, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPPB, dated 22 Jul 98.
   Exhibit E.  Letter, HQ AFPC/DPPPA, dated 1 Sep 98.
   Exhibit F.  Letter, HQ AFPC/JA, dated 9 Dec 98.
   Exhibit G.  AFBCMR, dated 28 Dec 98.
   Exhibit H.  Applicant’s Letter, dated 13 Mar 99, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair


AFBCMR 98-01878




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                                  be corrected to
show that:

           a.  The Overall Recommendation on the Promotion
Recommendation Form, AF Form 709,  reviewed by the Calendar Year 1997C
(CY97C) Lieutenant Colonel Central Selection Board be changed from
“Promote” to “Definitely Promote.”

           b.  The remarks in Section III of AF Form 77, Supplemental
Evaluation Sheet, closing 9 June 1995, be, and hereby are, declared
void and replaced with “No report available for the period 1 June 1994
through 9 June 1995 due to a break in service which was the direct
result of an error on the part of the Air Force.  Officer restored to
active duty by direction of the Secretary of the Air Force under AFI
36-2603.”

           c.  The “Corrected Copy” annotations on the following
documents be moved to the bottom, reverse margin, in accordance with
AFI 36-2401, Table 4, Note 2:  AF Form 707A, Field Grade Officer
Performance Reports closing 14 October 1991, 14 October 1992,
6 September 1993, and 31 May 1994; and AF Form 77, Supplemental
Evaluation Sheet, closing 9 June 1995.

      It is further directed that he be considered for promotion to
the grade of lieutenant colonel by a Special Selection Board for the
CY97C Central Lieutenant Colonel Board.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency