9202810
                                                           INDEX CODE 131.00

                                 ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  92-02810



                 HEARING DESIRED:  YES



RESUME OF CASE:

In an application, dated 2 February 1992, the applicant requested  that  she
be reinstated in the Statutory Tour Program; promoted to the  Reserve  grade
of lieutenant colonel; given a four-year tour  in  NGB-CSO  plus  sanctuary;
and receive full back-pay, medical care, attorney fees, and whatever  relief
justice required.

On 16 February 1993, the Board considered applicant’s requests.  A  majority
of the Board found sufficient evidence of a probable error or  an  injustice
warranting the applicant’s reinstatement on a four-year statutory tour  with
retroactive pay and allowances.   However,  the  Board  found  no  basis  to
warrant favorable  consideration  of  her  requests  for  promotion  to  the
Reserve grade of lieutenant  colonel;  placement  in  a  sanctuary  zone  to
obtain retirement  eligibility,  and  compensation  for  medical  care,  and
attorney fees.  A complete copy of the Record of Proceedings is attached  at
Exhibit G.

On 14 October 1993,  the  Deputy  for  Air  Force  Review  Boards  (SAF/MIB)
approved the recommendation  of  the  Board  and  directed  the  applicant’s
records be corrected to show that she was not released from extended  active
duty (EAD) on 12 June 1991, but continued on extended active  duty  until  1
July 1991; and on 2 July 1991, she was ordered to extended active  duty  for
a period of 48 months.

The applicant was considered  and  not  recommended  for  promotion  by  the
Fiscal Year  1997  (FY97)  Reserve  of  the  Air  Force  Lieutenant  Colonel
Selection Board.

The applicant was considered and recommended for promotion by the  FY98  Air
Force Reserve Lieutenant Colonel Selection Board.

The applicant was promoted  to  the  Reserve  grade  of  lieutenant  colonel
effective 1 October 1997.

In a Memorandum Opinion and Order,  dated  17  September  1998,  the  United
States  District  Court  for  the  District  of   Columbia,   directed   the
applicant’s case be  remanded  to  the  Board  to  reconsider  its  decision
denying full relief to the applicant, and if the  Board  denies  applicant’s
request for retroactive promotion, to carefully explain such a  decision  in
light  of  the  overwhelming  evidence  in  the  administrative  record   of
applicant’s outstanding performance.  A complete copy of the  United  States
District Court for the  District  of  Columbia,  Memorandum  and  Order,  is
attached at Exhibit H.


AIR FORCE EVALUATION:

The Director, Personnel and Training, Air National Guard (ANG/DP),  reviewed
this  application  and  states  the  administrative  record   reviewed   and
referenced by the court includes Officer Effectiveness Reports (OERs) and  a
Training Report (TR) that were available to the Board at the time the  Board
considered  applicant’s  requests.   These  evaluations  document  sustained
admirable performance by the applicant, which is expected of an  officer  of
her rank and longevity, since the  majority  of  ANG  officers  serve  their
entire career with honor and distinction.  The result  of  this  performance
is evidenced by her promotion via unit vacancy to  the  grade  of  major  in
April 1985, and  her  selection  for  attendance  in-residence  Professional
Military Education (PME), at the Air Command and  Staff  College  (ACSC)  in
1986.  However, the fact that she achieved these milestones in her  military
career does not, in any instance, warrant the  applicant  the  insurance  to
remain on statutory tour until  retirement  eligible  or  promotion  to  the
grade of lieutenant colonel via unit vacancy.

ANG/DP also reviewed records from a  group  of  her  peers,  with  similarly
strong and sustained performance documented in their evaluations  and/or  TR
from  in-residence  PME,  and  have  provided  a  comparison.   This  review
revealed that these officers had expressed their desire to  be  extended  on
statutory tour but were not continued into sanctuary, nor  promoted  to  the
grade of lieutenant colonel via unit vacancy while serving on such  a  tour.
Additionally, two of these officers were promoted via unit  vacancy  to  the
grade of major, as was the applicant.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit I.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation  and  states  that
the Board should review the entire record in this  matter,  to  include  the
complete AF/IG and NGB/IG investigations, and provide full  and  appropriate
relief to correct the manifest injustice inflicted  on  the  applicant  over
the course of the past ten years.

The applicant’s counsel states the following:

      a. Although the District Court issued  its  decision  on  17 September
1998, the ANG did not prepare the advisory opinion until 19  May  1999,  and
did not provide him a copy until 25 May 1999, with no  explanation  for  the
long delay.

      b.    The ANG advisory contains several significant flaws.  First,  it
does not comply with the requirements  of  32  CFR  §865.S(a)(2),  for  such
advisories (i.e., whether remedy is available  administratively,  timeliness
of application, and does not  instruct  the  Board  on  specific  corrective
action if applicant is successful).

      c.    The ANG focus only on justifying the  previous  Board's  refusal
to promote then Major  XXXXX  to  the  grade  of  lieutenant  colonel.   The
advisory compares  the  applicant’s  OERs  with  those  of  three  anonymous
officers, supposedly her "peers."  This comparison  lacks  validity  because
appointments to unit vacancies during  the  period  concerning  this  matter
used a "fully qualified" standard, not  the  "best  qualified"  standard  of
later years.  Further, the advisory compares  officers  from  the  Personnel
and Training  directorate,  not  the  Contracting  directorate  (applicant’s
assignment and where position existed).

       d.     The  ANG  does  not  address   the   sexual   harassment   and
discrimination as well  as  retaliation  the  applicant  suffered  from  her
superiors for refusing to take part in “sex”  parties  and  consent  to  her
superiors’ sexual advances.  Counsel contends these violations  have  always
been the underlying and essential issues in this case.

      e.    The ANG does not refute the sexual  harassment,  discrimination,
and retaliation claims in the applicant’s original petition  to  the  Board,
which were supported by  both  the  AF/IG  and  NGB/IG  investigations.   In
addition, both  IG  reports  recommended  her  promotion  to  the  grade  of
lieutenant colonel.

      f.    The applicant returned to active duty on 4  February  1994.  The
ANG shuffled her from one non-promotable position to another -  despite  her
supervisors'  recommendations  that  she  be  promoted.   These  retaliatory
actions evidenced an ongoing and  continuing  pattern  of  abuse  of  agency
discretion.

      g.    In regard to the ANG’s review of records from  a  group  of  the
applicant's  peers,  with  similarly  strong   and   sustained   performance
documented in their evaluations and/or  TRs  from  in-residence  PME,  major
flaws mar their analysis.  First, if these officers do  indeed  exist,  they
are  from  Personnel,  rather  than  Contracting  as  was   the   applicant.
Contracting and Personnel require different skills, thus, any comparison  is
irrelevant.  In addition, the ANG redacted all these  officers'  identifying
characteristics - the subjects' gender,  race,  past  performance,  and  the
conditions surrounding their separation from  the  Statutory  Tour  Program.
The ANG advisory provides no criteria establishing these  officers  are  the
applicant's "peers."

      h.    The ANG also fails to note the standard for promotion in a  unit
vacancy situation (as is the case here)  is  "fully  qualified,"  not  "best
qualified."  The  applicant  clearly  met  and  meets  this  standard.    In
addition, she was nominated for a  unit  vacancy  promotion.   She  had  the
specialized training, time-in-grade, and experience necessary to  be  "fully
qualified" for the position intended.

      i. Other than their "analysis," the ANG merely recites facts  with  no
justification for the actions taken  against  the  applicant.   As  did  the
previous ANG advisory, this advisory again concedes the central  issues  the
applicant presented in her original petition.  At  no  point  does  the  ANG
dispute  or  contradict  the  underlying   facts   of   sexual   harassment,
discrimination  and  retaliation.   Neither  does  the  ANG  challenge   the
applicant’s claim concerning the resulting physical harm she  suffered  from
these illegal acts, nor her financial distress.   In  some  ways,  this  ANG
advisory also concedes the issues addressed in the  Summary  Report  of  the
Air Force Inspector General (IG).

      j. The advisory does not address the district court's reliance on  the
applicant’s immediate superior requesting  an  additional  officer  position
for then - Major XXXX and the court's conclusion the  Board's  decision  was
arbitrary and capricious.

      k. The previous Board did not examine  the  IG  records,  despite  the
AF/IG's invitation to do so. The Board,  therefore,  did  not  consider  the
entire record. To avoid  another  arbitrary  and  capricious  decision,  the
Board must read, review, acknowledge, and incorporate  all  the  information
available to it, and  act  accordingly  to  eliminate  error  and  egregious
injustice. Such thorough review, analysis, and corrections of records  where
appropriate is, after all, the Board's  very  mission.   Disregarding  these
records will only result in another unfair decision.

      l.  But  for  the  invidious  discrimination  and  retaliation,  which
continues today, the applicant would be a full colonel with
appropriately increased responsibility  and  pay.   The  applicant’s  former
supervisor, Col XXXXX recommended her for a colonel  position  when  he  was
reassigned, which was dismissed by the ANG brass.

Counsel’s complete response, with attachments, is attached at Exhibit K.




THE BOARD CONCLUDES THAT:

1.    Upon carefully reviewing this case  again  at  the  direction  of  the
Court, in retrospect, we believe that sufficient relevant evidence has  been
presented to demonstrate the existence of a probable error or  an  injustice
warranting favorable action on the applicant’s request for promotion to  the
Reserve grade of lieutenant colonel as though she  had  been  nominated  and
selected for promotion by the  Fiscal  Year  1998  Lieutenant  Colonel  Unit
Vacancy Selection Board.  In arriving at our original decision to  deny  her
request for promotion to the Reserve grade of lieutenant colonel,  we  noted
that the only way for an ANG officer to be promoted  prior  to  meeting  the
mandatory requirements for  promotion  is  to  receive  a  position  vacancy
promotion.  However, we found no evidence to show  that  she  was  nominated
for consideration  under  this  program  and,  as  a  consequence  found  no
compelling basis to recommend her promotion.   Upon  further  study  of  the
voluminous documentation in this case, including the  investigative  reports
from the former NGB Chief Investigator, we believe that  the  applicant  was
serving in an environment that was not conducive  to  being  fairly  treated
and, as a result, was not given an opportunity to become competitive for  an
early promotion through no fault of her own.  The investigative reports  are
replete with instances of questionable treatment of the  applicant  by  high
level officials within  the  NGB.   In  fact,  it  appears  that  the  Chief
Investigator’s report was continuously watered down to  the  point  that  he
refused to sign it.  Subsequent to this officer taking a stand on behalf  of
the applicant, his services were  no  longer  needed  in  the  organization.
Nevertheless, this officer continued to try to rectify a situation  that  he
concluded to be unfair treatment of  the  applicant.   He  traveled  to  the
Washington area at his own expense and advised the DoD/IG of numerous  facts
which were included in his investigative report which demonstrated,  in  his
opinion, the implacable  animus  of  senior  officials  in  the  NGB  toward
applicant and their ongoing  actions  of  reprisal  against  her.   Examples
included (1) the deliberate removal of  a  letter,  from  applicant  to  the
Chief of Staff, from official distribution by her supervisor  and  then  the
retention of such letter by another senior officer until such  time  as  his
investigation disclosed its existence; and (2) her deliberate  and  frequent
reassignment from one career field to another during her  entire  career  at
the NGB, as this prevented her being able to qualify for further  promotion.
 Lastly, this officer recalls advising DoD/IG that, based on  everything  he
knew about applicant’s case, there was no substantial basis  whatsoever  for
either relieving her from active duty or for the  years  of  denial  of  her
promotion to lieutenant colonel.  He told them  that  she  had  been  denied
fair consideration throughout the process.  He also told them  that  he  had
been personally profoundly disappointed to learn  (after all  his  years  of
faith  in  the  fairness  of  the  system)  that  it  was  capable  of  such
corruption.  In view of the foregoing, it is highly unlikely  the  applicant
was permitted to compete  for  a  Unit  Vacancy  Promotion  on  a  fair  and
equitable basis.  Therefore, we believe the benefit of the doubt  should  be
resolved in her favor.  This action, in our view, will provide her full  and
fitting relief.

2.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice  regarding  the  remainder  of  her
requests. In this respect, we note the following:

      a.    After thoroughly reviewing the evidence  of  record  and  noting
counsel’s  contentions,  we  are  not  persuaded  the  applicant  should  be
promoted to the Reserve grade of colonel through the correction  of  records
process. The applicant has not shown that she is eligible for  promotion  to
the Reserve grade of colonel (i.e., occupying an  O-6  position,  completion
of Senior Service School, etc.).  In addition, there  has  been  no  showing
that the applicant is still being harassed or  unfairly  treated.   She  has
been given another active duty tour and promoted to the grade of  lieutenant
colonel.  Therefore, in the  absence  of  clear-cut  evidence  that  she  is
unfairly being deprived of an opportunity to compete for  promotion  to  the
Reserve grade of colonel, we believe  the  recommended  corrections  to  her
records is the maximum warranted.

      b.    Counsel’s request that applicant be permitted to  attend  Senior
Service School (SSS) is duly noted; however, it  appears  she  is  currently
enrolled in an SSS  (i.e., Air War College) and has not shown that  she  was
unjustly denied an opportunity to attend at an earlier date.

       c.     Since  the  applicant  has  reached  the  sanctuary  zone  for
retirement eligibility, her request to  remain  on  active  duty  until  the
customary retirement date, is moot.

3.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that she  was  promoted  to  the  Reserve
grade of lieutenant colonel, with a promotion  service  date  and  promotion
effective date of 16 April 1989.





The following members of the Board considered this application in  Executive
Session on 21 September 1999, under the provisions of AFI 36-2603:

                  Ms. Charlene M. Bradley, Panel Chair
                  Mr. Charles E. Bennett, Member
                  Mr. Vaughn E. Schlunz, Member

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

      Exhibit G.  Record of Proceedings, dated 4 Oct 93, w/atchs.
      Exhibit H.  Memorandum Opinion & Order, dated 17 Sep 98.
      Exhibit I.  Letter, ANG/DP, dated 19 May 99.
      Exhibit J.  Letter, AFBCMR, dated 25 May 99.
      Exhibit K.  Letter, Counsel, dated 21 Jul 99, w/atchs.




             CHARLENE M. BRADLEY
                                  Panel Chair






AFBCMR 92-02810




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 she was promoted to the
Reserve grade of lieutenant colonel, with a promotion service date and
promotion effective date of 16 April 1989.






                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency