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

IN THE MATTER OF:      DOCKET NUMBER:  93-00530
            INDEX NUMBER:  111.01, 131.00,
                           107.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer  Performance  Report  (OPR)  closing  18  August  1991  be
permanently removed from his records.

His records be corrected to reflect he was retired  in  the  grade  of
colonel (O-6).

He be awarded the Defense Meritorious Service Medal (DMSM).

___________________________________________________________________

RESUME OF CASE:

On 12 April 1994, the AFBCMR  considered  and  denied  an  application
submitted by applicant requesting that the Officer Performance  Report
(OPR) closing 18 August 1991 be voided in  its  entirety  or,  in  the
alternative, deletion  of  portions  of  the  rater’s  and  additional
rater’s comments, and amendment of  the  report  to  reflect  that  he
supervised five USAF personnel.  The AFBCMR  also  denied  applicant’s
request for  promotion  to  the  grade  of  colonel.   See  Record  of
Proceedings, with Exhibits A through E3.

___________________________________________________________________

APPLICANT CONTENDS THAT:

His request for  retirement  stated  that  he  would  accept  a  valid
promotion to colonel and continue to serve his country.   He  was  not
given a fair and impartial  promotion  opportunity  to  the  grade  of
colonel for generally two reasons.  The OPR closing 18 August 1991 was
a “career-ending” report.  The report, which has  been  amended  once,
remains untruthful, unfair,  improper,  and  incomplete.   Because  of
illegal Office of  Military  Cooperation  (OMC)  leadership  acts  and
illegal management level evaluation boards (MLEB) selection  acts,  he
did not receive fair and impartial  consideration  at  the  Air  Force
selection board.

A promotion recommendation form (PRF) was not prepared by  the  Chief,
Office of Military Cooperation (OMC), for  the  MAJCOM  MLEB  and  Air
Force selection board [CY91B Col Selection Board].  The  PRF  for  the
CY92A Colonel Selection Board was accomplished using secret codes.

The illegally conducted  Air  Force  selection  boards  and  promotion
recommendation  process  deprived  him  of  a  fair  opportunity   for
promotion,  professional  military  schools,  and  continued  military
service (1981, 1982 Major Below the Promotion Zone (BPZ) and Major  In
the Promotion Zone (IPZ); 1986, 1987, Lt Col BPZ and Lt Col IPZ; 1991,
1992 Col BPZ and Col IPZ).  He received no “Whistleblower”  protection
as required by 10 USC 1034.

The procedures used by the rater, the senior rater at  the  MLEB,  and
Air  Force  selections  boards  were  contrary  to  statute  and   DOD
Directive.

Applicant’s request for reconsideration, which  includes  his  24-page
statement with attachments, is at Exhibit F.

___________________________________________________________________

AIR FORCE EVALUATION:

The Appeals and SSB Branch,  AFPC/DPPPA,  reviewed  this  request  and
recommended denial.  DPPPA stated, in part, that  applicant’s  request
to void the OPR closing 18 August 1991 is without foundation.  He  has
failed to provide any evidence, with the  exception  of  his  personal
comments, that would prove the OPR to be flawed.  It appears that  the
report was accomplished in direct accordance, to include the  closeout
date of the report, with Air Force policy in effect at the time it was
rendered.  The “corrected copy” of the applicant’s 18 August 1991  OPR
was in his selection folder when it was considered by the CY92A Lt Col
Board.

The applicant does not have a PRF on file for the CY91B board  because
at the CY91B board an eligible officer had to  receive  a  “Definitely
Promote” (DP) recommendation to be considered for  below-the-promotion
zone (BPZ) consideration.  Apparently the applicant’s rating chain did
not submit him as a nominee for  a  DP  recommendation  at  the  CY91B
Board.  The applicant has provided no evidence that he was not  fairly
considered by his major command for nomination for promotion two years
BPZ.  For the CY92A Board, the applicant submits a  theory  that  MLEB
members conspired, using secret codes, to  accomplish  his  PRF  in  a
manner that would negatively impact his promotion  potential.   Again,
he provides no evidence from the evaluator who accomplished the report
or from an official Air  Force  agency  substantiating  his  claim  of
injustice.

DPPPA did not agree with the applicant’s position that the Air Force’s
systems of writing PRFs, promoting eligible  officers,  and  reviewing
appeals were completely without merit and operated  with  the  express
purpose of destroying his career.  He chose to retire prior  to  being
considered IPZ to the grade of colonel.  He had the option, even if he
was twice nonselected to the grade  of  colonel,  to  serve  until  he
reached high-year  tenure  (28  years  of  service  for  a  lieutenant
colonel).

The complete evaluation is at Exhibit G.

The Programs and  Procedures  Branch,  AFPC/DPPRP,  provided  comments
addressing  the  applicant’s  contention  that  his   retirement   was
unlawful.  DPPRP stated applicant voluntarily asked to  retire  —  his
retirement was not mandatory.  He retired under the provisions  of  10
USC 8911, which provides for the retirement of an  officer  (upon  his
request) who has at least 20 years of active service which includes 10
years of active commissioned service.  All provisions of the law  were
met and the applicant was retired on 1 October 1993.  (Exhibit H)

The Recognition Programs Branch, AFPC/DPPPRA, recommended  disapproval
of the applicant’s  request  for  award  of  the  Defense  Meritorious
Service Medal instead of the Meritorious  Service  Medal  (Second  Oak
Leaf Cluster).  DPPPRA stated applicant received  the  MSM(2OLC)  upon
retirement.  He provided a copy of a draft  narrative  (unsigned)  and
proposed  citation  for  the  DMSM,  with  a  handwritten  annotation,
“Duchein signed; Cohen signed; Lost?”  However, he did not provide any
documentation to substantiate his claim that a recommendation  package
for the DMSM was submitted into official channels.  (Exhibit I)

The Staff Judge Advocate, AFPC/JA, reviewed the applicant’s submission
and  stated  that  he  has  failed  to   establish   a   prima   facie
“whistleblower”  claim,  and  the  applicant’s  case  should  not   be
processed under 10 USC 1034.  JA stated, in part,  that  in  order  to
establish a prima facie “whistleblower” case, there must be more  than
the  mere  existence  of  a  “retaliatory  personnel  action”  and   a
“protected  communication.”   There  must  actually  be  a  “protected
communication” which predates — and which potentially could cause -  a
“retaliatory personnel action.”  Assuming  the  applicant’s  18 August
1991 OPR can be considered a  “retaliatory  personnel  action,”  there
must have been, at that time, a preexisting “protected  communication”
in order for the applicant to be  considered  a  “whistleblower.”   JA
scrutinized the materials in the administrative record, and  the  only
“communications” in the file which could be construed as “protected” -
even including those authored  by  the  applicant’s  relatives  -  all
postdate the applicant’s OPR.  Furthermore, JA is not even  sure  that
the applicant considers the 18 August 1991 OPR to be the  “retaliatory
personnel action.”  With no more than the applicant’s bald  allegation
- “I received no ‘Whistleblower’ protection  as  required  by  10  USC
1034, 1552” - JA can  do  no  more  than  speculate  on  what  is  the
underlying basis for the applicant’s “whistleblower” claim.  The  only
thing clear from the record, as  it  presently  exists,  is  that  the
applicant has failed to establish a prima facie “whistleblower” case.

After reviewing the applicant’s request for reconsideration, JA stated
that applicant’s newly submitted material is either not “evidence,” or
it is not new at all (a large part of his package contains  the  exact
same documents  he  previously  submitted);  or  it  is  redundant  or
cumulative to what he already submitted; or  it  is  not  relevant  in
proving an issue to be resolved by this Board;  or  it  is  not  newly
discovered in the sense that it was  available  at  the  time  of  his
original application.  Applicant’s newly  submitted  material  is,  in
essence, a rebuttal brief to the Board’s 9 September 1994 decision; it
is not a request for reconsideration within the  meaning  of  the  Air
Force Regulation.

The complete evaluation is at Exhibit J.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his contentions that the procedures used  by  the
rater, the senior raters at the MLEBs, and  the  Air  Force  selection
boards were in violation of the statute and DOD Directive.  Because of
the Air Force personnel management procedure and illegal OMC and  MLEB
acts, he did not receive fair and impartial consideration at  the  Air
Force promotion board.

Applicant disagreed with AFPC/JA and  stated  that  he  was  protected
under the Whistleblower Protection Act and he suffered retribution.

The applicant  contends  that  the  advisory  opinions  are  factually
inaccurate, logically obtuse, written with a slanted view  to  justify
the flawed OPR which ended his career  and  to  protect  the  system’s
unlawful  promotion  process.   He  provided  his  expanded   comments
addressing specific issues in each of the advisory opinions.

Applicant’s 20-page response, with attachments, is at Exhibit L.

By letter  dated  18  February  1998,  applicant  requested  that  all
documentation from the DOD-IG investigation be included as part of his
petition (Exhibit M).

On 17 May 1998, applicant provided a letter to be included in his case
file stating, in part, that he is a professional and during  the  last
three years of his career, he endured a hostile work  environment  and
that his rater rendered him an unjustified  career-ending  performance
report.  The complete statement is at Exhibit N.

In a post card dated 31 August 1998, applicant requested the reference
“AFMPC.COM/RESOURCE SITE 2/SASCREPORT.HTM/ be added  to  his  petition
(Exhibit O).

Applicant provided copies of two letters he  sent  to  his  Member  of
Congress,  dated  4  July  1997  and  14  August  1998,  respectively,
regarding his DOD IG complaint (Exhibit P).

By letter, dated 4 May 1999, applicant’s Member of Congress, forwarded
applicant’s letter to him for inclusion in the  case file (Exhibit Q).

By  letter  dated  30  April  1999,  applicant   provided   additional
documentation to be included in his case.  Included, but  not  limited
to, were three letters  to  his  Member  of  Congress,  including  two
letters  previously  submitted  at  Exhibit   P;   redacted   DOD   IG
investigator memoranda for the record  and  a  redacted  copy  of  the
rater’s [on the contested report] 100-page interview with the  DOD  IG
investigator;  applicant’s  inputs   for   his   OPRs;   documentation
pertaining to deficiencies of command, the contested  OPR,  change  of
assignment,  MSM,  and  applicant’s  complaint  to  the  DOD  Hotline.
Applicant’s complete statement is at Exhibit R.

In a letter  dated  15  June  1999,  applicant’s  Member  of  Congress
provided a 9 June 1999 electronic mail  from  the  applicant  for  the
Board’s consideration (Exhibit S).

By letter  dated  23  August  1999,  applicant’s  Member  of  Congress
forwarded a 17 August 1999 electronic mail from the applicant for  the
Board’s consideration (Exhibit T).

By letter  dated  1  September  1999,  applicant  provided  additional
comments for the Board’s consideration  pertaining  to  the  contested
OPR, the officer evaluation system and promotion process.  Applicant’s
complete statement is at Exhibit U.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Insufficient relevant evidence has presented  to  demonstrate  the
existence of probable error or injustice.  After thoroughly  reviewing
the evidence of record and noting the applicant’s contentions, we  are
not persuaded that he has been the victim of an  error  or  injustice.
In this respect, we note the following:

      a.  Applicant contends that the  contested  OPR  is  untruthful,
unfair,  improper  and  incomplete.   However,  other  than  his   own
assertions, we find that no evidence has been presented substantiating
his arguments that the  evaluators  were  unable  to  render  unbiased
assessments of his duty performance during the contested rating period
or that the report was prepared contrary to the  governing  regulation
in effect at the time the report was rendered.  We also did  not  find
the rater’s failure to conduct a feedback session, in and of itself, a
sufficient  basis  to  invalidate  the  report.   In  the  absence  of
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend that the report be removed from the applicant’s records.

      b.  We noted the applicant’s contentions  that  a  PRF  was  not
prepared for the CY91B Central Colonel Selection Board  and  that  the
PRF for the CY92A Board was accomplished using  a  secret  handwritten
code rating on the form.  However, at the time of the CY91B  Board  an
eligible  officer  had  to  receive  a   “Definitely   Promote”   (DP)
recommendation to be considered  for  below-the-promotion  zone  (BPZ)
consideration.  Apparently,  the  applicant’s  rating  chain  did  not
submit him as a nominee for a DP recommendation at  the  CY91B  Board.
Other than his own assertions, the applicant  has  not  presented  any
evidence showing that he  was  not  fairly  considered  by  his  major
command for nomination for  promotion  two  years  BPZ.   Nor  has  he
presented any evidence substantiating his allegations that the PRF for
the  CY92A  Board  was  accomplished   contrary   to   the   governing
regulations.

      c.  Applicant asserts that he was submitted  for  award  of  the
DMSM.  However, other than an unsigned draft  narrative  and  proposed
citation, the applicant has not provided any evidence showing  that  a
properly prepared recommendation for the DMSM was  ever  initiated  by
the appropriate individuals and placed into official channels.  In the
absence of evidence to the contrary, we find  no  basis  to  favorably
consider the applicant’s request for the DMSM.

      d.  Contrary to the applicant’s assertions, we found no evidence
that his retirement was unlawful.  Evidence  in  the  record  reflects
that he voluntarily applied for retirement to be effective  1  October
1993.  His retirement was not mandatory.  Furthermore,  based  on  his
approved  application  for  retirement,  his   established   date   of
separation rendered him ineligible for promotion consideration to  the
grade of colonel in the primary promotion zone.

      e.  Applicant’s numerous contentions  concerning  the  promotion
recommendation process, the use of secret codes on PRFs,  the  Officer
Evaluation System (OES), and the statutory and  regulatory  compliance
of the Management Level Evaluation Boards and  the  central  selection
boards, are duly noted.  However, we do not find these  uncorroborated
assertions, in and of themselves, sufficiently persuasive to  override
the rationale expressed by the Air Force.  Therefore,  we  agree  with
the recommendation of the Air Force and adopt the rationale  expressed
as the basis for our conclusion that the applicant failed  to  sustain
his burden of establishing the existence of  either  an  error  or  an
injustice warranting favorable action on the applicant’s requests  for
promotion to the grade of colonel and that his record be corrected  to
reflect that he was retired in that grade.

       f.  Applicant  claims  that  he  received   no   “Whistleblower
protection”.  However, after a review of  the  evidence  provided,  we
agree  with  the  rationale  expressed  by  the  office   of   primary
responsibility (AFPC/JA) as the basis  for  our  conclusion  that  the
applicant has failed to establish a prima facie “whistleblower” claim.

2.  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   issues   involved.
Therefore, the request for a hearing is not favorably considered.
___________________________________________________________________

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 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

The following additional documentary evidence was considered:

    Exhibit F.  DD Form 149, dated 27 Aug 96, w/atchs.
    Exhibit G.  Letter, AFPC/DPPPA, dated 23 Dec 96.
    Exhibit H.  Letter, AFPC/DPPRP, dated 9 Jan 97, w/atchs.
    Exhibit I.  Letter, AFPC/DPPPRA, dated 16 Jan 97.
    Exhibit J.  Letter, AFPC/JA, dated 25 Feb 97.
    Exhibit K.  Letter, SAF/MIBR, dated 10 Mar 97.
    Exhibit L.  Letter from Applicant, dated 1 May 97, w/atchs.
    Exhibit M.  Letter from Applicant, dated 18 Feb 98.
    Exhibit N.  Letter from Applicant, dated 17 May 98.
    Exhibit O.  Post card from Applicant, dated 31 Aug 98.
    Exhibit P.  Applicant’s Letters to C/M Burton, dated 4 Jul 97
                and 14 Aug 98.
    Exhibit Q.  Letter from Sen Coverdell, dated 4 May 99,
                w/Applicant’s letter, dated 30 Apr 99.
    Exhibit R.  Letter from Applicant, dated 30 Apr 99, w/atchs.
    Exhibit S.  Letter from Sen Coverdell, dated 15 Jun 99,
                w/Applicant’s e-mail, dated 9 Jun 99.
    Exhibit T.  Letter from Sen Coverdell, dated 23 Aug 99,
                w/Applicant’s e-mail, dated 17 Aug 99.
    Exhibit U.  Letter from Applicant, dated 1 Sep 99.
    Exhibit V.  DOD-IG Report of Investigation, #P94L58879332,
                dated 9 Apr 97, withdrawn.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair