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


IN THE MATTER OF:                       DOCKET NUMBER: 96-01894
                                        INDEX CODE 131.09
                                        COUNSEL:  None

                                        HEARING DESIRED:  Yes

_________________________________________________________________

RESUME OF CASE:

In a application dated 27 June  1996,  applicant  requested  that  the
Officer Selection Briefs (OSBs) considered by  the  Fiscal  Year  1993
(FY93), FY94 and FY95 Reserve of the Air Force (ResAF) Colonel Overall
Vacancy Selection Boards be amended; that he be promoted to the  grade
of colonel as if selected by, preferably,  the  FY93  board;  and  his
record  reflect  continuous  Reserve  duty   since   his   involuntary
retirement with all back pay and entitlements.

On 26 November 1996, the Board granted applicant’s request to  correct
his OSBs, but denied his request for direct  promotion.  Instead,  the
Board recommended the applicant  be  given  consideration  by  Special
Review Board(s) (SRB) for the colonel promotion board(s).  Applicant’s
request for reinstatement would be held in abeyance  pending  the  SRB
results.

A complete copy of the Record of Proceedings is attached at Exhibit D.

Applicant was subsequently considered but not selected  for  promotion
by SRBs for the FY93, FY94, and FY95 boards.  He was notified  of  his
nonselections by AFBCMR letter dated 16 July 1997 (Exhibit E).

Applicant now requests reconsideration in light of additional evidence
he submits in the form of an 18-page brief with  six  attachments.  He
contends his nonselections for promotion should be set  aside  on  the
basis that the Central Reserve Officer  Promotion  Act  (ROPA)  Boards
were conducted in violation of statute and Air Force  directives.  The
issues he raises are  similar  to  those  pertaining  to  the  Officer
Promotion System and which have been contended on the active duty side
over the past several years.  He asks for direct promotion to  colonel
as if selected by the FY93 ROPA board.

Applicant’s complete submission is at Exhibit F.

_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge  Advocate  (SJA),  HQ  ARPC/JA,  reviewed  applicant’s
latest submission.  The SJA advises it must be understood that,  while
the personnel philosophies of the Defense Officer Personnel Management
Act (DOPMA) and ROPA are generally similar (though,  in  this  regard,
the personnel philosophy of the Reserve Officer  Personnel  Management
Act (ROPMA) is, by conscious  design,  more  closely  attuned  to  the
policy and procedures  found  in  DOPMA),  ROPA  promotion  procedures
evolved by accretion between the years 1954  and  1996  and,  in  many
instances, do not have the same statutory underpinning  or  regulatory
basis as DOPMA promotion procedures.  The SJA indicates  there  is  no
basis on which to void the applicant’s nonselections.

A copy of the complete evaluation is at Exhibit G.
_________________________________________________________________

APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and, in  a  14-page  brief
with six attachments, makes the following conclusions/summations:

      1.  ARPC has provided nothing to  refute  his  conclusions  that
“only by setting aside the passovers could [he] have  been  placed  in
the same position as [he] would have been but for the errors in  [his]
file.”

      2.  His rights were curtailed  when  the  AFBCMR  abdicated  its
responsibility to  a  uniformed  review  board  to  determine  if  his
corrected record would have warranted promotion to colonel.  Only  the
AFBCMR can act and provide full and fitting relief as  an  SRB  cannot
provide a viable review of his file—or any other file—as a  result  of
serious problems with its operation and the operation of the selection
board it purportedly mirrors.

      3.  ARPC admits recommendations were formed only  at  the  panel
level and the board never knew the  names  of  the  officer  allegedly
found best  qualified  and  recommended  for  promotion.  ARPC  admits
certification was made without knowledge of the officers  recommended.
He asks the AFBCMR to apply the Doyle standards. Obviously, the  error
is at the heart of the process  Congress  and  the  Air  Force  itself
deemed necessary for promotion of officers in the Air  Force  Reserve.
He contends selection boards employ erroneous standard  of  proof.  He
cites Roane vs US  and  asks  that,  as  the  selection  boards  which
considered his file were held contrary to directive---ROPA, Air  Force
Regulation, and  direct  secretarial  instruction---his  nonselections
incurred at these illegal boards be set aside.

      4.  His case is little different than the recent case  in  which
the AFBCMR directed promotion of an  officer  to  the  ROPA  grade  of
Brigadier General. He  had  a  basic  right  to  a  selection  process
conducted squarely according to  statute,  directive  and  secretarial
instruction.

As he cannot be terminated unless he has  been  considered  by  boards
conducted as required by statute and regulation,  he  is  entitled  to
continuous duty until  those  requirements  of  law  can  be  met.  He
requests direct promotion to colonel as if selected by the FY93  ResAF
board.

Applicant’s complete rebuttal, with attachments, is at Exhibit I.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

The Staff  Judge  Advocate  (SJA),  HQ  ARPC/JA,  provides  a  10-page
evaluation  which  discusses,  in  part,  the  pertinent  court  cases
referred to by the applicant as well as the  applicant’s  contentions.
The SJA asserts that there is no basis in law for  setting  aside  the
applicant’s previous nonselections  for  promotion  to  the  grade  of
Reserve  colonel.  The  applicant  has  been  afforded  every   relief
available through an application to the AFBCMR; therefore, there is no
authority for granting  this  request.  As  a  result  of  an  earlier
application to the AFBCMR, an SRB was directed but the  applicant  was
not recommended for selection for promotion by that  SRB.  Regrettably
for the position advocated by the  applicant,  this  state  of  events
would end the SRB process in his previous AFBCMR application. The  SJA
adds that the earlier discussion in paragraph 2 of this evaluation  of
the Small case mitigates strongly in favor of  concluding  that  Small
compels denial of this application. There is the outstanding issue  of
the US Federal Court of Claims case of Roane, which reaches a contrary
conclusion to Small. The SJA has concluded that Roane  was,  pure  and
simple, wrongly decided, and the SJA firmly believes that the logic of
the US Court  of  Appeals  for  the  Federal  Circuit  will  compel  a
reconsideration of the decision. Doyle has not the slightest  relation
to the facts of  this  application.  Further,  the  portion  that  the
applicant chose to make use of from the court’s opinion, while stating
a broad principle which the SJA supports, has no relevance here. There
was, in fact, no “procedural violation” of any statute, regulation, or
policy anywhere in these facts. Accordingly the Doyle case is  not  on
point with the facts of this application. Additionally, the  selection
boards affecting the applicant conformed with all statutes, regulation
and SAF directive. As for the applicant’s  allegation  that  selection
boards employ erroneous standard of proof, the SJA continues to adhere
to the 29 June 1998 ARPC/JA advisory. The applicant’s contentions  are
without merit; therefore, denial is recommended.

A copy of the complete evaluation, with attachments, is at Exhibit J.

The Director of Personnel Programs,  HQ  ARPC/DP,  provides  technical
advisories on the Reserve promotion board and SRB processes in  effect
at the times the applicant was considered  to  the  grade  of  Reserve
colonel. More specific response to his [board  processes]  allegations
regarding  the  board  processes  are  included  in  the  accompanying
attachments.

A copy of the complete evaluation, with attachments,  is  provided  at
Exhibit K.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

The applicant provided a rebuttal, which was received  by  the  AFBCMR
Staff on 20 July 1999.  He argues that, as  the  underlying  facts  in
Small are clearly different, the Board cannot rely on it as the  broad
“approval” of the panel system suggested by ARPC/JA. In fact, the most
critical  element---board   member   knowledge   of   the   candidates
recommended---was not  available  to  the  members  at  his  promotion
board(s).  The problems he discusses  clearly  make  the  boards  that
considered his file legal nullities. While ARPC claims Roane  will  be
reversed, its reconsideration was actually denied. As for Neptune,  it
was based on the facts of Small which he has shown are different  than
those in his case. His situation is  little  different  than  the  one
described in Sanders. The evidence proves the SRB was inept as  it  is
inapt as a “cure” for the problems “allegedly” corrected in his  file.
Not only did the actions of the SRB deny  him  his  right  to  have  a
civilian board rule on his application, its  procedures  were  equally
unavailing as a source of relief. His record shows the  potential  for
selection to colonel.  He asks the Board to promote him to  the  grade
of colonel as if selected at his first consideration.

Applicant subsequently provided  additional  comments  via  electronic
mailgram (EMail).

A copy of the applicant’s complete rebuttal, with attachments, and the
EMail are at Exhibit M.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

Applicant’s  numerous  contentions,  including  those  concerning  the
statutory compliance of  ROPA  boards,  the  promotion  recommendation
appeal process, and the legality of the  Special  Review  Board  (SRB)
process are duly noted.  However, we do not find these assertions,  in
and by themselves, sufficiently persuasive to override  the  rationale
provided by the Air Force Reserves. We note  the  applicant  cites  an
AFBCMR  case  wherein  the  Board  recommended  direct  promotion.  He
asserts, in essence, that his appeal is so similar to the  cited  case
that relief is warranted using the same rationale. We  disagree.  Each
case before this Board is considered on its own merit, and we are  not
bound by precedent. Cases which may appear  similar  are  often  quite
different and require a different  conclusion.   In  the  cited  case,
additional errors were created while that applicant’s record was being
amended for SRB review. As a result, the “corrected” record  was  even
more flawed than when it was reviewed during  the  original  promotion
considerations. Contrary to what this applicant appears to infer,  the
Board did not find the SRB process contrary to  statute  or  base  the
directed promotion on  the  cited  applicant’s  promotability.  Direct
promotion was recommended because, despite prior favorable  action  by
the Board, subsequent errors further flawed the record  to  the  point
that the Board believed full and fair promotion consideration might no
longer be possible.  Such is not the case in the instant  appeal.  The
applicant has not substantiated his allegations that the  ROPA  boards
and the SRB process are in violation of statute, that he was  deprived
of equitable promotion consideration,  or  that  he  would  have,  and
should have, been promoted to colonel. Therefore, we  agree  with  the
recommendation provided by  the  Air  Force  Reserves  and  adopt  the
rationale expressed as  the  basis  for  our  conclusion  that  direct
promotion, or any relief in addition to that which  has  already  been
granted this applicant, is warranted.

The documentation provided with this case was sufficient to  give  the
Board a clear understanding of the  issues  involved  and  a  personal
appearance, with or without legal counsel, would not  have  materially
added to that understanding.  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 documentary evidence was considered:

   Exhibit D.  Record of Proceedings, dated 19 Dec 96, w/atchs.
   Exhibit E.  AFBCMR’s Letter, dated 16 Jul 97, w/atch.
   Exhibit F.  Applicant’s Letter, dated 13 Mar 98, w/atchs.
   Exhibit G.  HQ ARPC/JA’s Letter, dated 29 Jun 98.
   Exhibit H.  AFBCMR’s Letter, dated 20 Jul 98.
   Exhibit I.  Applicant’s Letter, undated, w/atchs.
   Exhibit J.  HQ ARPC/JA’s Letter, dated 1 Feb 99, w/atchs.
   Exhibit K.  HQ ARPC/DP’s Letter, dated 2 Feb 99, w/atchs.
   Exhibit L.  AFBCMR’s Letter, dated 22 Feb 99.
   Exhibit M.  Applicant’s Letter, undated, w/atchs, and EMail
                    dated 1 Sep 99.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair