RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03323 (Cs #3)
                 INDEX CODE 111.01 111.03 110.03
                       131.01
      XXXXXXXX         COUNSEL:  JOHN A. WICKHAM

      XXXXXXXX         HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Promotion Recommendation Forms (PRFs) reviewed by the Calendar
Years 1993B and 1994A (CYs 93B/94A) Central Major Selection Boards, be
declared void.

2.  The Officer Performance Reports (OPRs) for the  periods  26 August
1993 through 22 May 1994 and 23 May 1994  through  31 March  1995,  be
declared void and removed from his records.

3.  The promotion nonselections by the CY93B and CY94A  Central  Major
Selection Boards, be set aside.

4.  He be considered for promotion to the grade of major by the  CY93B
and CY94A Central Major Selection Boards.

5.  In the alternative, if the applicant is not  provided  relief  for
the above  four  requests,  then  he  be  reconsidered  for  selective
continuation in his Foreign  Area  Officer  Program  (FAO)  specialty,
retroactive to his date of discharge from the Regular Air Force,  with
back pay and allowances and reinstatement in the grade of major.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The information from his Education/Training Report for  the  period  8
July 1992 through 25 August 1993 should have been included in his CY93
PRF and his senior  rater  received  incorrect  guidance  on  the  PRF
preparation. The training report should have met the Air Force Student
Management Level  Review  (MLR)  which  convened  on  5 October  1993.
Additionally, his CY94A PRF was unfairly  influenced  by  the  Officer
Performance Report (OPR) closing 22 May 1994. On 29 December 1994,  he
filed a complaint with the Air Force Office of Special  Investigations
(AFOSI) against the rater of the 22 May 1994 OPR for  making  repeated
sexual advances to his (applicant’s) wife. He submits a redacted AFOSI
Report of Investigation (ROI) in support.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was discharged from the Regular Air Force on 30  April  1995
upon his twice nonselection by the CY93B (6 Dec 93) and CY94A (22  Aug
94) Major Selection Boards. On 1 May 1995, he accepted an  appointment
as a captain in the Reserve of the Air Force. He is currently  serving
in the U. S. Air Force Reserve in the grade of major.

Applicant’s OPR profile is as follows:

          PERIOD ENDING          OVERALL EVALUATION

        #   25 Aug 93            Education/Training Report
    *  ##   22 May 94            Meets Standards
    *       31 Mar 95            Meets Standards
             3 May 96 (Major)    Meets Standards (USAFR)
             3 Nov 96            Meets Standards
            11 Apr 97            Education/Training Report

*  Contested OPRs

#    Top report at time of nonselection to the grade of major
       by the CY93B Central Major Board
##   Top report at time of nonselection to the grade of major
       by the CY94A Central Major Board

Additional statements of facts are provided in the 28 June 1996 Record
of Proceedings (ROP) which pertains to an earlier appeal filed by  the
applicant. In the previous AFBCMR  case  (Docket  No.  94-04557),  the
applicant requested consideration for promotion to the grade of  major
and candidacy for Air Command and  Staff  College  (ACSC)  by  special
selection board (SSB) for the CY93B  Central  Major  Selection  Board.
The Board considered and denied the applicant’s requests on 1 February
1996.  Therefore, his request for  SSB  consideration  for  the  CY93B
selection board based on the 1993 PRF is  essentially  a  request  for
reconsideration. A copy of the ROP is provided at Exhibit C.

The AFBCMR Staff obtained complete, unredacted  copies  of  the  AFOSI
ROIs, dated 27 March and 4 April 1995, for  the  Board’s  review.  The
ROIs were generated by the applicant’s 29 December 1994  complaint  to
the additional rater of the 22 May  1994  OPR  regarding  the  rater’s
repeated sexual advances towards the applicant’s wife.  The additional
rater  brought  the   applicant’s   complaint   to   the   AFOSI   for
investigation.  Administrative actions were taken against the rater.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Evaluation Programs Branch, HQ AFPC/DPPPE, states that  the
applicant contends that the PRF for the CY93 Central  Major  Selection
Board did not contain information from his training  reports.   During
this period, applicant was an Air Force  level  student.   His  senior
rater was required to prepare a narrative-only PRF when the  applicant
entered training.  This PRF is considered to be an accurate reflection
of the officer’s performance at the time it is prepared and represents
the officer for any promotion opportunities while he is in  Air  Force
student status.  The senior rater  has  the  sole  responsibility  for
determining what should be included in the officer’s PRF.  He  is  not
obligated to include information from the training report.

Applicant also contends that  the  25  August  1993  training  report,
signed on 5 October 1993,  should  have  met  the  Air  Force  Student
Management Level Review (MLR).  The MLR convened on  5  October  1993.
However, training reports are not required to be filed in the member’s
record until  60  days  after  the  close  out  date.   There  was  no
requirement for the training report to be in  the  applicant’s  record
during the MLR.

With regard  to  the  issue  of  incorrect  guidance  during  the  PRF
preparation process, the  applicant  provides  no  evidence  that  the
senior rater was advised incorrectly.  Applicant does show support  on
this issue from the rater  (at  the  time  the  form  was  completed).
However, the PRF is not the responsibility of the  rater,  it  is  the
responsibility of the senior rater.

In regard to the PRF for the  CY94A  promotion  board,  the  applicant
contends that it was influenced negatively by  his  OPR.  This  22 May
1994 OPR is still considered a matter  of  record.  Therefore,  it  is
considered  a  valid  source  document  to  be  used  during  the  PRF
preparation process. In conclusion, with the  evidence  provided,  the
CY93 PRF should remain unchanged. Regarding  the  CY94A  PRF,  if  the
applicant is successful in having the contested OPRs removed  and  has
senior rater and Management Level (ML) approval for a new PRF, then  a
new PRF should be rendered. However, it is recommended the PRF  remain
unchanged at this time.

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

The Chief, Officer Promotion  Management,  HQ  AFPC/DPPPOO  states  in
regard  to  the  applicant’s  request  to  set  aside  the   promotion
nonselections by the CY93B and CY94A Central Major  Selection  Boards,
that Title 10 clearly  establishes  that  officers  not  selected  for
promotion are considered to have failed that promotion.  If,  however,
the board grants special selection board (SSB)  consideration  on  the
basis  of  applicant’s  other  contentions,  and  he  is  subsequently
selected for promotion by an SSB, the applicant will be  retroactively
promoted with all  back  pay  and  allowances  (as  if  he  was  never
nonselected for promotion).

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

The Chief, Regular Air  Force  Appointment  &  Selective  Continuation
Section, HQ AFPC/DPPPOC, states that U.S.C., Title  10,  Section  637,
provides “An officer subject to discharge or retirement in  accordance
with section 632 of this title  may,  subject  to  the  needs  of  the
service,  be  continued…if  he  is  selected  for  continuation…by   a
selection  board  convened  under  section  611(b)…”   Application  to
continue applicant on active duty in his Foreign Area Officer  Program
specialty should be denied.  The Secretary of the Air  Force  did  not
convene a selective  continuation  board  associated  with  the  CY94A
Central Major  Selection  Board.   The  fact  the  applicant  was  not
selected for continuation is not a result of  an  action  taken  by  a
selective continuation board.  All individuals, not already retirement
eligible  or  within  two  years  of  retirement   eligibility,   were
discharged as a result of being twice  nonselected  for  promotion  to
major as provided for in U.S.C., Title 10, Section 632.

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

The Chief, Appeals and SSB Branch, HQ AFPC/DPPPA,  states  that,  with
regard to the applicant’s request to remove the 22 May  1994  OPR,  he
contends this report was a “lackluster and mediocre” report.  He  also
alleges the rater of  that  report  sexually  harassed  his  wife  and
assigned him additional tasks and extra duties to purposely put stress
on his marriage.

Air Force policy is that an evaluation report is accurate  as  written
when it becomes a matter of record.  To effectively challenge an  OPR,
it is necessary to hear from all the  members  of  the  rating  chain.
Applicant has failed  to  provide  any  information/support  from  the
rating chain on the contested OPRs.  In  the  absence  of  information
from evaluators, official substantiation of error  or  injustice  from
the IG or Social Actions is appropriate.

Applicant’s counsel contends  the  AFOSI’s  four-month  investigation,
including the applicant’s spouse’s polygraph examination,  corroborate
the charges  brought  against  the  applicant’s  rater.   As  a  note,
AFPC/DPPPA’s  investigation  revealed  the   rater’s   OPR   for   the
corresponding reporting period was less than  perfect.   They  do  not
recommend SSB consideration with exclusion of the 22 May 1994  OPR  at
this time.

The purpose of removing the 31 March 1995  OPR  from  the  applicant’s
record is not understood.  Applicant has not identified  any  specific
error on the report.  More  importantly,  the  rating  chain  on  this
report, with the exception of the  reviewer,  is  different  from  the
reporting chain on  the  previous  report.   It  appears  the  OPR  is
accurate as written and SSB consideration is not warranted.  Based  on
the lack of evidence provided, recommendation of denial is appropriate
and SSB consideration is not warranted.

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

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel submits a response to the Air Force evaluations and states, in
summary, that none of the opinions dispute that glaring  injustice  of
the systemic manpower management problem with the Air Force’s  failure
to timely implement the Secretarial mandate from  the  1991  Inspector
General Report until after it  prematurely  cashiered  out  applicant,
wasted its investment and destroyed career.  Promotion board must have
information relating to the needs of the Air Force for officers having
particular skills.

As a result, when applicant’s OPRs were drafted, his PRFs  written  by
Student Management Level Evaluation Boards, and records considered  by
promotion boards, no one in  the  entire  process  had  been  properly
alerted to applicant’s exceptional skills and Air Force needs.

A copy of counsel’s response, with attachment, is attached at  Exhibit
I.

Applicant has also submitted a response and attached a copy of his Air
Force Reserve orders, dated 16 June 1999, for a period of active  duty
from 14 June 1999 to 24 September 1999.  He  also  provided  a  letter
from HQ Air Reserve Personnel Center regarding Stop/Loss  Actions  and
adjusting applicant’s mandatory separation date, expiration of term of
service, or retirement effective date.

Applicant’s response, with attachments, is attached at 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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice to warrant  granting  any
of the  applicant’s  requests  or  his  alternative  remedy.   Neither
counsel nor the applicant has provided persuasive evidence to  support
their apparently major contention that an alleged  “systemic  manpower
management problem” regarding the Foreign Area Studies Program  (FASP)
deprived the applicant of full and  fair  promotion  consideration  or
that there is a nexus  between  the  alleged  system  errors  and  his
nonselections. As far as the technical, regulatory, and administrative
aspects of the training report(s), the CY93B PRF, and the  applicant’s
performance record, we believe these have been fully addressed by  the
Air Force evaluations, as well as by the previous Board panel in their
conclusions, and need no further elaboration from us.

4.    We carefully read the unredacted AFOSI ROIs.  While  it  appears
the rater was guilty of misconduct towards the applicant’s wife, given
the timeframe of events and the lack of supporting statements from the
other evaluators, we are not persuaded that the 22 May 1994 OPR is  an
inaccurate assessment of the applicant’s performance during the period
in question.  Incidentally, we would point out that counsel errs  when
he states in his rebuttal that “The advisory opinion did  concede  the
OPR was less than  favorable.”  HQ  AFPC/DPPPA  is  referring  to  the
rater’s, not the applicant’s,  OPR.  Paragraph  d  of  their  advisory
discusses the results of the OSI investigations against the rater  and
the pertinent sentence is “As a note, our investigation  revealed  the
rater’s OPR [emphasis added] for the  corresponding  reporting  period
was less  than  perfect.”  The  rater  did  receive  a  referral  OPR.
Insufficient evidence was provided to demonstrate that the  CY94A  PRF
was adversely influenced by the allegedly inaccurate 1994 OPR, and  no
evidence of an error or injustice was provided regarding the 31  March
1995 OPR.. In view of the above and absent persuasive evidence to  the
contrary, the applicant has failed to sustain  his  burden  of  having
suffered either an error  or  an  injustice.  Therefore,  we  find  no
compelling basis to recommend granting the relief sought.

_________________________________________________________________

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 7 December 1999, under the provisions of AFI  36-
2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Ms. Patricia D. Vestal, Member
                  Ms. Melinda J. Loftin, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 1 Nov 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  ROP dated 28 Jun 96, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPPPE, dated 9 Dec 98.
   Exhibit E.  Letter, HQ AFPC/DPPPOO, dated 30 Dec 98.
   Exhibit F.  Letter, HQ AFPC/DPPPOC, dated 12 Jan 99.
   Exhibit G.  Letter, HQ AFPC/DPPPA, dated 25 Jan 99.
   Exhibit H.  Letter, AFBCMR, dated 8 Feb 99.
   Exhibit I.  Letter, Counsel, dated 10 Jun 99, w/atchs, and
                    Letter, Applicant, dated 19 Jun 99, w/atchs.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair