RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00322
                       INDEX CODE: 102.02, 111.01,
                                       131.01, 131.09

                       COUNSEL:  None

                       HEARING DESIRED:  No


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Officer Performance Report (OPR) rendered for the  period  8 April
1995 through 7 April 1996, be declared void and removed from his record.

2.    He be promoted to the grade of  major,  retroactive  to  the  date  of
1 December 1997.

3.    He be allowed to assume the grade of major as a Reserve officer.

4.    He be relieved of the obligation to repay the $35,000 he  received  in
involuntary separation pay.

5.     The  Board   recommend   the   Secretary   convene   an   independent
investigation of his former rater.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was called as a  witness  in  an  Inspector  General  (IG)  investigation
concerning allegations of misconduct that someone had made against his then-
supervisor,  Colonel  D---  K---.   These  allegations  included  abuse   of
authority and maltreatment of subordinates.  He  was  a  reluctant  witness,
and he informed the IG that he feared  reprisal  from  Colonel  K---  if  he
cooperated in the investigation.  Specifically, he knew  that  his  OPR  was
due in approximately one month, and that this would be the  final,  and  the
most crucial, OPR prior to his meeting the major board later that year.   In
April 1996, Colonel K--- wrote his OPR.  As he feared, it was  a  lackluster
document, and he was subsequently passed over for promotion to major by  the
Judge Advocate General (JAG) promotion board that was held later that  year.
 In September 1997  he  filed  an  IG  complaint  based  on  reprisal.   The
response substantiated his  complaint,  and  determined  that  Colonel  K---
reprised against him and a co-worker by writing inappropriately low OPRs  in
response to their cooperation in the 1996 investigation.

Applicant further states that the Board  has  the  opportunity  to  right  a
tremendous wrong.  Although he has requested relief for himself, he  has  an
even  stronger  hope  that  the  Board   will   recommend   the   additional
investigation he has requested.  Both PACAF command and the  JAG  leadership
had ample  warning  and  opportunity  to  prevent  this  outcome,  but  they
apparently stood by and let junior officers suffer who committed no  offense
greater than that of giving truthful testimony.  His active duty  career  is
over.  That cannot be changed.  However, the Board can use its influence  to
help insure that senseless acts of reprisal do not recur.  Despite  the  way
that he has been treated, he still harbors a great love for the  Air  Force.
Years ago, he committed to making any sacrifice, including that of  his  own
life, to protect his country and advance  the  Air  Force  mission;  if  the
lesser sacrifice of his career would benefit the Air Force, he would  gladly
lay it down.  Unfortunately, he lost his career solely for  the  purpose  of
protecting a corrupt senior officer.  The resulting damage to the Air  Force
is infinitely more painful to him than the loss of his own  livelihood.   He
respectfully urges the Board to consider his requests carefully  and  to  do
the right thing.

In support of the appeal, applicant submits his  reprisal  complaint,  dated
23 Sept 97, Summary Report of Investigation,  dated  9  Dec  98,  OPRs,  and
Promotion Recommendation Form, dated Nov 96.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was considered and not selected  by  the  CY96C  and  CY97E  Major
(JAG)  Selection  Boards.   Based  on  his  second  nonselection,  applicant
separated on 30 September 1998.  He received $35,000 in separation pay.

OPR profile since 1993, follows:

           PERIOD ENDING           EVALUATION OF POTENTIAL

                       07 Apr 93          Meets Standards (MS)
                       07 Apr 94                   MS
                       07 Apr 95                   MS
                    #  *     07 Apr 96                   MS
                       07 Apr 97                   MS
                    ## 07 Apr 98                   MS
                       31 Aug 98                   MS

* Contested report
# Top report at time of CY96C board.
## Top report at time of CY97E board.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Officer Promotion  Management,  Directorate  of  Pers  Prog  Mgt,
AFPC/DPPPO, states that granting a direct promotion would be unfair  to  all
other officers who competed on the CY96C board.   However,  if  approval  is
granted to remove the 7 April 1996 contested OPR, they  recommend  applicant
be granted Special Selection  Board  (SBP)  consideration  for  that  board.
(Exhibit C)

The Ch, Promotion, Evaluation and Recognition Div, Directorate of  Personnel
Program Management, AFPC/DPPP,  agrees  with  HQ  AFPC/DPPO  on  the  direct
promotion issue and adds an officer may be qualified for promotion, but,  in
the judgment of a selection board – vested with discretionary  authority  to
make the selections – he may not be the best qualified  of  those  available
for the limited number of promotion vacancies.   Absent  clear-cut  evidence
the applicant would have been a  selectee  by  either  the  CY96C  or  CY97E
board,  they  believe  a  duly  constituted  board  applying  the   complete
promotion criteria is in the  most  advantageous  position  to  render  this
vital determination.

AFPC/DPPPB further states that the  IG  determined  the  applicant’s  former
rater  inappropriately  wrote  him  an  undeserving  OPR  in  reprisal   for
testifying in the 1996 IG investigation  where  the  former  rater  was  the
subject of an IG investigation.  Therefore, they recommend  the  Board  void
the contested OPR and direct the applicant receive SSB consideration by  the
CY96C board.  (Exhibit D)

The Mil Personnel Mgt Specialist,  Separations  Branch,  AFPC/DPPRS,  states
that the applicant did not identify any specific  errors  in  the  discharge
processing nor provide facts warranting  reinstatement  in  the  Air  Force.
Accordingly, they recommend the applicant’s request be denied.  (Exhibit E)

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  12
July 1999, for review and response within 30 days.   As  of  this  date,  no
response has been received by this office.

_________________________________________________________________

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  voiding  the  Officer
Performance  Report  (OPR)  closing  7 April  1996  and   granting   Special
Selection Board (SSB) consideration.  Since the IG  investigation  sustained
the applicant's allegation that the contested report was written as  an  act
of reprisal, equity dictates that  the  report  be  declared  void  and  the
applicant be reconsidered for promotion to major by an SSB  for  all  boards
that the report was a matter of record.

4.    Applicant's  request  for  a  Secretarial  promotion  is  duly  noted.
However, we agree with the recommendation of the appropriate OPR  and  adopt
its rationale as the basis for our decision that a Secretarial promotion  to
major is not warranted under the circumstances.

5.    Applicant's request that he be allowed to assume the  grade  of  major
in the Air Force Reserve is premature.  Should he be promoted  to  major  by
an SSB based on his corrected record and does not wish to be  reinstated  on
active duty, his request to serve in the Reserve grade  of  major  would  be
ripe for consideration.  Lastly,  applicant's  request  that  we  direct  an
investigation of his former commander is noted.   However,  because  of  the
lapse of time and the corrective action recommended here, we do not  believe
it would serve any useful purpose to revisit this issue  at  this  late  and
untimely date.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to  APPLICANT,  be  corrected  to  show  that  the  Company  Grade   Officer
Performance Report, AF Form 707B, rendered  for  the  period  8  April  1995
through 7 April 1996, be declared void and removed from his records.

It is further recommended that he be considered for promotion to  the  grade
of major by Special Selection Boards for the Calendar Years 1996C and  1997E
Central Major Boards; and that, if selected  for  promotion  to  major,  the
results be made available to the Air Force Board for Correction of  Military
Records (AFBCMR) at the earliest practicable date to be utilized  in  making
a final decision.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 19 October 1999, under the provisions of AFI 36-2603:

          Ms. Rita S. Looney, Panel Chair
          Ms. Patricia D. Vestal, Member
          Mr. John E. Pettit, Member
          Ms. Gloria J. Williams, Examiner (without vote)

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

   Exhibit A.  DD Form 149, dated 26 Jan 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPO, dated 10 Mar 99.
   Exhibit D.  Letter, AFPC/DPPP, dated 9 Apr 99.
   Exhibit E.  Letter, AFPC/DPPRS, dated 17 Jun 99.
   Exhibit F.  Letter, AFBCMR, dated 12 Jul 99.





                                   RITA S. LOONEY
                                   Panel Chair


AFBCMR 99-00322




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 the Officer Effectiveness
Report, AF Form 707B, rendered for the period 8 April 1995 through 7 April
1996, be, and hereby is,  declared void and removed from his records.

      It is further directed that he be considered for promotion to the
grade of major by Special Selection Boards for the Calendar Years 1996C and
1997E Central Major Boards; and that, if selected for promotion to major,
the results be made available to the Air Force Board for Correction of
Military Records (AFBCMR) at the earliest practicable date in making a
final decision.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency