RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                 DOCKET NUMBER:  98-02230
                                  INDEX CODE 110.03  131.09  134.02
                                  COUNSEL: No

                                  HEARING DESIRED: Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

The following corrections be made to his records:

      1.  All his military records, to include  the  master  personnel
record, squadron record, the Federal  Bureau  of  Investigation  (FBI)
record, which indicate he spent time in jail,  be  corrected  to  read
only that he was on active duty status with no mention of jail at all.

      2.  The referral Officer Performance Report (OPR) for the period
21 September 1991 through  20  September  1992  be  deleted  from  his
records.

      3.  He be given consideration for  promotion  to  the  grade  of
captain by Special Selection Board (SSB) for the Calendar  Year  1992B
(CY92B) Captain Central  Selection  Board  and,  if  selected,  he  be
promoted with a date of rank  (DOR)  commensurate  with  his  entering
class and awarded all back pay and allowances.

      4.  He be reinstated to active duty and assigned to San Antonio,
Texas.

If these requests cannot be granted, then he asks that his  separation
on 31 December 1997 be changed to an involuntary  honorable  discharge
due to reduction-in-force  (RIF)  effective  on  the  date  the  Board
adjudicates his case, preferably 1 May 1999, and his furniture storage
fees be paid [See this amendment  to  his  original  requests  in  his
rebuttals - Exhibit I].
_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the  records  to  be  in  error  or
unjust and the evidence submitted in support  of  the  appeal  are  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was considered but not selected  for  promotion  by  the
CY92B Captain Central Selection Board. While a copy of  the  Promotion
Recommendation Form (PRF) for that  board  cannot  be  found,  records
indicate he received a “Do Not Promote (DNP)” recommendation.  Officer
Promotions at HQ AFPC informally advised that the applicant  also  was
considered by the CY93C board, but  was  not  rated  since  he  was  a
prisoner at the time. Therefore, there was no PRF for that board.

On 10 July 1997, the US Court of Appeals for the Armed Forces reversed
and set aside the applicant’s court-martial conviction and sentence as
promulgated in General Court Martial Order (GCMO) No. 4, dated  7  May
1993. The convening authority entered GCMO No.  3,  dated  1  December
1997, dismissing all charges pursuant to Rules of Court-Martial  (RCM)
1107(e), and restoring all rights, privileges, and property  of  which
the applicant had been deprived.

The applicant’s military personnel records were received by the AFBCMR
Staff on 26 April 1999. The appellate court’s action is  not  included
in the records, only GCMO No. 4 (conviction and sentence).

The remaining relevant facts pertaining to this application, extracted
from the applicant's military records, are contained  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 Military Justice Division, AFLSA/JAJM,  reviewed  the  appeal  and
concluded a legal error  requiring  correction  occurred.  The  author
recommends the Board grant the applicant’s request and  advises  which
offices should, upon receipt  of  this  advisory,  affect  appropriate
corrections.

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

The Acting Chief, HQ AFPC/DPPPA, concurs with the  JAJM  advisory  and
would not be opposed to removing the referral OPR and reinstating  the
applicant.

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

The Chief, Officer Promotion Management,  HQ  AFPC/DPPPOO,  recommends
the applicant be given SSB consideration for the CY92B board. However,
the applicant should submit an addendum to his DD Form 149 to  request
removal of the “DNP” recommendation of the CY92B  PRF.  Otherwise,  if
SSB is granted and the hard copy of the CY92B PRF cannot  be  located,
an AF Form 77, Supplemental Evaluation Sheet, would be inserted in his
selection folder indicating the DNP recommendation.

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

The Military Personnel Management Specialist, HQ  AFPC/DPPRS,  concurs
with JAJM and recommends approval.

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

The Assignments Advisor, HQ AFPC/DPAPP2, recommends  that  applicant’s
request to be assigned to San Antonio, Texas, be denied. No basis  can
be found for this request, and  assignment  should  be  based  on  his
qualifications and needs of the Air Force.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provided two Electronic Mailgrams (EMails) indicating he
has no evidence to prove he has the  right  to  be  stationed  in  San
Antonio. However, his career was taken from him  and  he  was  put  in
prison for something he did not do. He and his family were  forced  to
sell their home and car to pay attorney’s fees. He was not  given  any
consideration from Hill AFB to correct any of his  records;  they  did
not even ask if he wanted to stay on active  duty.  The  treatment  he
received at Hill AFB did not  meet  any  standard  of  civil  behavior
expected from the US military. He amends his request to  allow  him  a
separation date of [when the Board decides his case, preferably 1  May
1999] with all rights and privileges afforded any military member  who
is affected by an involuntary RIF. He also wants his furniture storage
fees paid. If this cannot  be  granted,  then  he  would  like  to  be
reinstated to active duty and stationed in San Antonio.

Applicant’s complete EMails are at Exhibit I.

_________________________________________________________________

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 agree with the Military Justice  Division’s  recommendation
that, based on the appellate court reversing  and  setting  aside  the
findings of  guilt  and  sentence,  the  appropriate  agencies  should
correct the applicant’s  military  and  civilian  records,  and  these
corrections will be processed administratively. As for  the  remaining
issues, since the referral OPR appears to have been driven by  charges
that were  not  substantiated  in  the  Court-Martial  and  by  guilty
findings that were subsequently  set  aside  in  appellate  action,  a
majority of the Board also accepts the recommendation of HQ AFPC  that
the referral OPR should be  declared  void.  Further,  since  the  DNP
recommendation of the missing PRF was  probably  similarly  driven,  a
majority of the Board concludes that the PRF, if found, and the record
of the DNP recommendation should also be declared void. The  applicant
should also be given promotion consideration to the grade  of  captain
by SSB for the CY92B board and, if necessary, for the CY93C board. The
results of the SSB(s) should be  forwarded  to  the  Board  for  final
disposition.

4.    Applicant’s request for assignment to San Antonio will  be  held
in abeyance pending the results of the SSB. Should he be selected  for
promotion to captain, he will become  eligible  for  reinstatement  to
active duty; however, if he should wish to be  separated,  a  new  DOS
will need to be established. If he is promoted and given  a  new  DOS,
reimbursement for an allowable amount of household goods storage  will
be determined by the Defense  Finance  and  Accounting  Service.  With
respect to his request for payment of  attorney’s  fees,  we  have  no
authority to recommend payment of expenses of any kind incurred by, or
on behalf of, an applicant in connection with a correction of military
records under Title 10, United States Code, Sections 1034 or 1552.

_________________________________________________________________

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 Company Grade Officer Performance Report, AF Form  707B,
rendered for the period 21 September 1991 through  20 September  1992,
be declared void and removed from his records.

      b.  The Promotion Recommendation Form (AF Form 709)  and/or  its
“Do Not Promotion” recommendation,  rendered  for  the  Calendar  Year
1992B (CY92B) Captain Selection Board, be declared  void  and  removed
from his records.

It is further recommended that he be considered for promotion  to  the
grade of captain by a Special Selection Board for the CY92B Board and,
if necessary, for the CY93C board and the results be forwarded to  the
Air Force Board for Correction of Military  Records  at  the  earliest
practicable date so that all necessary and appropriate actions may  be
completed.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 3 June 1999, under the provisions of AFI 36-2603:

                  Ms. Martha Maust, Panel Chair
                  Ms. Barbara J. White-Olson, Member
                  Mr. Clarence D. Long III, Member

All members voted to correct the applicant’s records  to  reflect  the
appellate action as promulgated in General Court-Martial Order No.  3.
All  members  voted  to  defer  on  the  applicant’s  request  for  an
assignment to San Antonio pending the results  of  the  SSB.  Mr. Long
voted against voiding the referral OPR and the DNP recommendation  and
has provided a Minority Report at Exhibit J. The following documentary
evidence was considered:

   Exhibit A.  DD Form 149, dated 7 Aug 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 5 Oct 98.
   Exhibit D.  Letter, HQ AFPC/DPPPA, dated 10 Nov 98.
   Exhibit E.  Letter, HQ AFPC/DPPPOO, dated 1 Dec 98.
   Exhibit F.  Letter, HQ AFPC/DPPRS, dated 2 Dec 98.
   Exhibit G.  Letter, HQ AFPC/DPAPP2, dated 1 Dec 98.
   Exhibit H.  Letter, AFBCMR, dated 21 Dec 98.
   Exhibit I.  EMails, Applicant, 8 & 12 Feb 99; 10 May 99.
   Exhibit J.  Minority Report.




                                   MARTHA MAUST
                                   Panel Chair

AFBCMR 98-02230



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

SUBJECT:

      After carefully considering the circumstances of this case, I
agree with the Board Majority’s recommendation to void the contested
Officer Performance Report (OPR) and the Do Not Promote (DNP)
recommendation of the Promotion Recommendation Form (PRF) reviewed by
the Calendar Year 1992C (CY92C) Captain Central Selection Board (CSB).
 However, I believe that further corrective action is required in
order to provide full and fitting relief.

      In this regard, my intent is to place the applicant in as
equitable position as possible by offsetting some of the negative
effects of the court-martial conviction and sentence as well as the
passage of time.  Removing the referral OPR and the PRF’s DNP
recommendation, while appropriate, leaves the applicant with a limited
performance record for a Special Selection Board’s consideration.  The
odds are against him.  Since the applicant most likely would still be
on active duty if the adverse actions taken against him hadn’t
occurred, and the promotion opportunity from first lieutenant to
captain in normal circumstances is 100%, he should be reinstated to
active duty and promoted to the grade of captain as if selected by the
CY92B Captain Board. Promoting him to captain will make him eligible
for promotion consideration to the grade of major in-the-promotion-
zone (IPZ) by the CY2000 Major Board, which is set to convene on
January 24, 2000.  However, since he will not have had any opportunity
to develop a performance record as a captain, any nonselection for
promotion to the grade of major IPZ should be set aside until he has
received a minimum of two OPRs in the grade of captain.

      Therefore, for the reasons discussed above, I direct the
applicant’s records be corrected as indicated on the Memorandum for
the Chief of Staff.




                                             JOE G. LINEBERGER
                                             Director
                                             Air Force  Review  Boards
Agency




AFBCMR 98-02230


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.  He was not involuntarily released from active duty in the
grade of first lieutenant on 31 December 1997, but on that date was
continued on active duty and was ordered permanent change of station
to his home of record (home of selection) pending further orders.

      b.  An AF Form 77, Supplemental Evaluation Sheet, be prepared
and inserted in the record in its proper sequence indicating that no
performance reports are available for the period when he was not
serving on active duty and containing the statement, “Reports for this
period not available for administrative reasons which were not the
fault of the member.”

      c.  The Company Grade Officer Performance Report, AF Form 707B,
rendered for the period 21 September 1991 through 20 September 1992,
and the Promotion Recommendation Form (AF Form 709) and/or its “Do Not
Promotion” recommendation, rendered for the Calendar Year 1992B
(CY92B) Captain Selection Board be, and hereby are, declared void and
removed from his records.

      d.  He was considered and selected for promotion to the grade of
captain by the CY92B Board, effective and with a date of rank of 30
September 1993.

      e.  Any nonselections for promotion to the grade of major in the
primary zone prior to receiving a minimum of two Officer Performance
Reports in the grade of captain be, and hereby are, set aside.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency


MEMORANDUM FOR EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                          CORRECTION OF MILITARY RECORDS

SUBJECT:  Minority Report on

      Lieutenant Romano has made a number of requests, some of which
are valid and some not.  His court martial was overturned due to
prosecutorial misconduct (withholding evidence). This is a long way
from saying that the misconduct never occurred, or that all
consequences of the misconduct need to be eliminated.

      In particular, the OPR he wants eliminated is not affected by
the court martial or its overturn.  The OPR does not mention the court
martial, only that Lieutenant Romano committed misconduct by undue
familiarity.

      At a minimum, if he committed these acts, they could be a part
of his OPR with or without criminal prosecution, as long as the court
martial was not mentioned.

      Lieutenant Romano has cited AFR 36-10 as support for his claims.
This regulation was superseded by AFI 36-2402, dated 1 July 1996.
However, the language in paragraph 1-7.d. of AFR 36-10 indicates that
evaluators may include facts obtained from other sources. The
evaluators’ comments appear to be in compliance with the AFR.
Therefore, I do not agree with my colleagues’ recommendation to void
this referral performance report.




                                                   CLARENCE D. LONG
III