RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  97-03777
              INDEX CODE:  131.00

                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

_________________________________________________________________


APPLICANT REQUESTS THAT:

He be considered for promotion to  lieutenant  colonel  by  a  Special
Selection Board (SSB) for the CY97B (2 June 1997)  Lieutenant  Colonel
Selection Board (P0597B), with inclusion of the following:

      a.  His Officer  Performance  Report  (OPR),  rendered  for  the
period 18 November 1996 through 31 May 1997.

      b.  The closing date of the Meritorious Service Medal,  2nd  Oak
Leaf Cluster, (MSM, 2OLC) be changed from 7 July 1997 to  31 May  1997
and placed in his OSR.

      c.  Replace the citation for the Air  Force  Commendation  Medal
(AFCM), currently filed in his OSR, with a legible copy.

By amendment (6 April 1998), he is requesting the  OPR,  rendered  for
the period 18 November 1996 through 31 May 1997, be replaced with  the
reaccomplished report provided.  He requests direct promotion  to  the
grade of lieutenant colonel; or, in the alternative, an SSB  with  his
records intact.

By amendment (21 July 1998),  he  is  requesting  that  his  Promotion
Recommendation Form (PRF), prepared for the CY97E (P0597E)  Lieutenant
Colonel Board (December 1997), be upgraded  to  a  definitely  promote
“DP” recommendation; and, if upgraded, it be factored into the Board’s
final decision on his case.  In addition, he requests that his Officer
Performance  Reports  (OPRs),  which  contain   numerous   handwritten
extraneous markings, be cleaned up; and, that his  assignment  history
on the officer selection brief (OSB) for the P0597E selection board be
changed to reflect Chief  of  the  General  Torts  Branch,  not  Trial
Attorney as listed.

By amendment (22 December 1998), in  addition  to  the  aforementioned
requests, he is requesting SSB reconsideration for  promotion  to  the
grade of lieutenant colonel, below-the-promotion zone  (BPZ),  by  the
CY95B (27 November 1995) Lieutenant Colonel Selection Board  (P0595B),
with inclusion of the MSM (1OLC) and a corrected  OSB  reflecting  the
award.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The OPR that closed out on 31 May 1997 should have been filed  in  his
OSR for review by the P0597B promotion board  because  it  closed  out
prior to the date the board convened.  The closing date  of  the  MSM,
2OLC, should have coincided with the closeout date of the OPR, so that
it could have been considered by the P0597B board.  He  did  not  have
sufficient time to write a letter to the  P0597B  board  president  to
bring the decoration issue to the board’s attention because he did not
receive a copy of his Promotion Recommendation Form (PRF) until 13 May
1997.  The copy of the AFCM filed in his OSR for the P0597B  promotion
was illegible.

In support of his request, applicant submits copies of statements from
his rating chain, the OPR  in  question,  the  citation  for  the  MSM
(2OLC), citations for the AFCM  and  additional  documents  associated
with the issues cited in his contentions (Exhibit A).
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
18 July 1984.  He is a judge advocate general (JAG) officer  currently
serving on active duty in the grade of major, with an  effective  date
and date of rank of 6 October 1992.

Applicant's  OPR  profile,  commencing   with   the   report   closing
13 November 1993, follows:

            Period Ending    Evaluation

                17 Nov 93    Meets Standards (MS)
                17 Nov 94         MS
             #  17 Nov 95         MS
             ## 17 Nov 96         MS
            *###31 May 97         MS

*  Contested OPR

# Top report at the time he was  considered  below-the-promotion  zone
(BPZ) and nonselected for promotion to lieutenant colonel by the CY95B
(P0595B) Lieutenant Colonel Board, which convened on 27 November 1995.

## Top report at the time  he  was  considered  in-the-promotion  zone
(IPZ) and nonselected for promotion to lieutenant colonel by the CY97B
(P0597B) Central Lieutenant Colonel Board, which convened  on  2  June
1997.

### Top report at the time he was considered above-the-promotion  zone
(APZ) and nonselected for promotion to lieutenant colonel by the CY97E
(P0597E)  Central  Lieutenant  Colonel  Board,  which  convened  on  8
December 1997.

The Meritorious Service Medal (MSM), second Oak Leaf  Cluster  (2OLC),
rendered for the period of 26  November  1993  to  7  July  1997,  was
awarded by Special Order GA-002, dated 8 July 1997.  The award was not
reflected on the applicant’s Officer Selection  Brief  (OSB)  for  the
CY97B selection board; however, it was reflected on the  OSB  for  the
97E selection board.

Copies  of  the  applicant’s  Promotion  Recommendation  Forms  (PRFs)
prepared for the P0597B and P0597E Lieutenant Colonel Selection Boards
are appended at Exhibit B.

Information maintained in the Personnel Data System (PDS) reveals that
the applicant has been nonselected  for  promotion  to  the  grade  of
lieutenant colonel by two selection boards and that he  currently  has
an established date of separation of 31 July 2004.
_________________________________________________________________

AIR FORCE EVALUATION:

The  Directorate  of  Personnel  Program  Management,  HQ  AFPC/DPPPA,
reviewed this application and  recommended  denial.   DPPPA  disagrees
with the applicant’s contention that the OPR,  closing  31  May  1997,
should have been in  his  Officer  Selection  Record  (OSR)  when  the
selection board convened on 2 June 1997.  DPPPA stated  that  the  OPR
was not required to be in his OSR when he was considered by the P9597B
selection board and to add the report to the  applicant’s  folder  for
SSB consideration would be unfair to all other officers considered  by
the board who had an OPR  close  out  within  60  days  of  the  board
convening date and did not get considered.  DPPPA  finds  the  rater’s
statement questionable since board dates are determined and  published
well in advance.  DPPPA stated that the OPR was accomplished in direct
accordance with applicable regulations.

As to the applicant’s request that the closing date for the MSM, 2OLC,
be changed, DPPPA stated that the applicant  was  recognized  for  his
outstanding achievements while assigned overseas from 26 November 1993
to 7 July 1997.  It was noted that he arrived at his  subsequent  duty
station on 11 July 1997.  DPPPA concluded that the inclusive dates  of
the award are accurate and  coincide  with  the  applicant’s  date  of
rotation from overseas (DEROS) and date arrived station (DAS)  at  his
current duty location.  The applicant’s period of service for the  MSM
ended on 7 July 1997.  His decoration was required to be completed and
awarded by July 1999.  It was  special  ordered  on  8 July  1997  and
placed  in  his  OSR  on  11  July  1997,   well   within   regulatory
requirements.  DPPPA stated that if the Board honors  the  applicant’s
request and changes the closing date of the MSM,  2OLC,  from  7  July
1997 to 31 May 1997, it would still not be required to be filed in the
applicant’s OSR until 60 days from the date of the  special  order  (8
July 1997). DPPPA finds the  decoration  was  completed,  awarded  and
filed in the applicant’s OSR  in  direct  accordance  with  Air  Force
policy.

DPPPA does not agree with the applicant’s contention that he  did  not
have sufficient time to write a letter to the P0597B  board  president
to bring the decoration issue to the board’s attention because he  did
not receive a copy of his Promotion Recommendation Form (PRF) until 13
May 1997.  DPPPA fails to see how the decoration issue relates to when
the applicant received his PRF.  DPPPA stated that the applicant  knew
the board was to convene on 2 June 1997 and did not have to wait until
he received his PRF to write  a  letter  to  inform  the  board  of  a
proposed  decoration  closing  out  after  the  selection  board.   In
addition,  the  applicant  could   have   elected   to   include   his
accomplishments over the past year in that letter, since he  knew  the
OPR was to close out 31 May 1997, only 2 days prior to the board.

DPPPA stated that the applicant apparently requested a copy of his OSR
and received an illegible copy of the  Air  Force  Commendation  Medal
(AFCM) citation.  DPPPA has enclosed  the  actual  copy  of  the  AFCM
citation that met the board, extracted  from  his  OSR  –  it  is  not
illegible.  Since it was printed on thin  “onion  skin”  paper,  DPPPA
replaced the onion skin copy with the copy the applicant  provided  in
his appeal package.  DPPPA stated that since  the  copy  of  the  AFCM
filed in the OSR when the board convened was completely  legible,  SSB
consideration is not warranted on this issue.

DPPPA believes the applicant’s record was accurate in relation to  the
claims made in this  appeal.   DPPPA  does  not  believe  any  further
corrections are required to the applicant’s record in response to  his
appeal, therefore, SSB consideration is not warranted.

A complete copy of this evaluation is appended at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion  and  indicated  that  the
basis for placing the 31 May 1997  OPR  in  his  OSR  is  because  his
supervisor erred in that he did not realize when the  selection  board
met and, by oversight, failed to complete the OPR in time so  that  it
could be  placed  in  his  OSR  and  legitimately  considered  by  the
promotion board.  The injustice that ensued was  the  promotion  board
was denied  the  opportunity  to  review  a  complete  record  of  his
performance in the year leading up to the board.  In  support  of  his
position and as evidence that an  injustice  did  in  fact  occur,  he
provided a letter from his rater at Air  Combat  Command  (ACC).   His
rater stated that it was an oversight on his part that the performance
report and decoration were not finalized in time for consideration  by
the promotion board.  He also provided a copy of  a  letter  from  the
additional reviewer/senior rater who supports his request that the OPR
should have been in his OSR.  Subsequent to the senior rater’s  review
of his previous performance evaluations, the senior rater stated in  a
letter of support that he may have done an injustice in  that  the  31
May 1997 OPR failed to comment on his potential to be  a  Staff  Judge
Advocate (SJA).  The senior rater stated that had the OPR been written
in time, he would have commented on his potential to be  a  SJA.   The
senior rater concluded in his statement  that  the  missing  OPR,  and
accompanying language change, is  ample  justification  to  place  his
record before a SSB.  With regard to the missing MSM, 2OLC, he was not
overseas from 26 November 1993 to 7 July 1997 as the advisory  opinion
stated - he was stationed at Headquarters Air Combat Command,  Langley
AFB, VA.  Aside from the fact that the MSM could have appeared in  his
records and given his  promotion  board  a  complete  picture  of  his
performance and achievements, its failure to  appear  in  his  records
created the devastating  appearance  that  he  was  downgraded  to  an
achievement medal as his end-of-tour medal.  DPPPA  carefully  avoided
reference to this  injustice  by  stating  that  decorations  are  not
awarded to enhance promotion opportunity and  that  the  applicant  is
simply attempting to enhance his promotion potential.  This is a  weak
attempt to downplay the significance of an achievement medal appearing
on his preselection brief as the last medal awarded.  With  regard  to
not receiving the PRF within 30 days of  the  board,  DPPPA  avers  he
still had sufficient time to write a letter  to  the  board  president
discussing the proposed decoration and his  accomplishments  over  the
past year, he was under the impression that the OPR and MSM  would  be
accomplished before his promotion  board  met.   DPPPA’s  bottom  line
conclusion that he received full and fair consideration by  the  board
could not be farther from the truth.  Clear injustices  have  occurred
with his record and have been brought to  light  by  his  supervisors.
His OSR was left with huge gaps in his record of performance, almost a
year’s time period, and the board was deprived of the  opportunity  to
see that as Chief of Adverse Actions at Air  Combat  Command,  he  was
working on some of the more highly visible officer misconduct cases in
the Air Force in 1997.

By amendment, dated 6 April 1998, the applicant requests an  expedited
cumulative review of his records to determine if  immediate  promotion
is appropriate.  To  date,  he  has  faced  three  lieutenant  colonel
promotion boards; December 1995 (below the promotion zone), June  1997
(in the promotion zone), and December 1997 (above the promotion zone).
 He does not believe appropriate corrective relief can be granted on a
board-by-board basis.   He  is  convinced  that  upon  review  of  the
totality of the circumstances involved in his three promotion  boards,
the Board will conclude immediate promotion to lieutenant  colonel  is
the most appropriate relief to correct the injustices in  his  record.
He has submitted a statement from his former supervisor at Grand Forks
AFB from July 1992 until November 1993.  Upon his PCS from Grand Forks
AFB to HQ ACC, his former supervisor nominated him for an MSM  (1OLC).
He  was  subsequently  advised   that   a   disgruntled   airman   had
intentionally destroyed several decorations, to include  his  MSM  and
that it would have to be  reaccomplished.   The  MSM  (1OLC)  was  not
completed and in his OSR before he met  the  December  1995  selection
board.  He also provided a  copy  of  the  18  March  1998  Evaluation
Reports Appeal Board (ERAB) denial of his request that the 31 May 1997
OPR be replaced with the reaccomplished OPR he provided (see Exhibit E-
1).

By amendment,  dated  28  April  1998,  pursuant  to  his  Freedom  of
Information Act (FOIA) request for a copy  of  his  Officer  Selection
Record (OSR) from the December 1997 lieutenant colonel board, HQ  AFPC
provided him the requested copy.  However, the OSR contained a copy of
the PRF prepared for the June 1997 board instead of the  PRF  prepared
for the December 1997 board.  If there  was  ever  now  a  case  which
beckons for extraordinary relief, this is such a case (see Exhibit  E-
2).

Effective 1 July 1998, he will be relieved of his current position  as
Chief of the General Torts  Branch  because  he  was  nonselected  for
promotion to lieutenant colonel.

In further  support  of  the  applicant’s  request,  a  statement  was
submitted from the Management Level Review  (MLR)  president  for  the
December 1997 lieutenant colonel promotion board (see Exhibit E-3).

Applicant’s complete submission is appended at Exhibit E.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the Selection Board  Secretariat,  HQ
AFPC/DPPB, provided an advisory opinion concerning the CY97B Promotion
Recommendation Form (PRF) which was forwarded to the applicant under a
Freedom of Information Act (FOIA)/Privacy Act (PA) request.

DPPB stated that while the records clerk reproduced the basic  Officer
Selection Record (OSR) correctly,  the  clerk  did  not  retrieve  the
proper PRF  from  the  Automated  Records  Management  System  (ARMS).
Unfortunately, the PRF for  the  CY97B  Lieutenant  Colonel  Selection
Board, convened on 2 June 1997, was included in the FOIA/PA  reply  to
the applicant vice the PRF created for the CY97E board.

DPPB indicated that the applicant’s  concern  that  his  OSR  met  the
December 1997  board  with  the  PRF  from  the  June  1997  board  is
unwarranted.  Before OSRs  are  presented  to  a  promotion  selection
board, a 100 percent audit is accomplished to ensure each  OSR  has  a
current PRF.  After the board adjourns, the PRF is  removed  from  the
OSR and sent to ARMS for filming and  the  paper  copy  is  destroyed.
Never  would  a  PRF  remain  in  the  OSR  after  board  adjournment.
Therefore, without a doubt,  the  applicant’s  OSR  presented  to  the
December 1997 board had a PRF created for the December 1997 board  and
not the PRF created for the June 1997 board (Exhibit F).
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

He  indicated  that  AFPC’s  current  position  is  disingenuous   and
disconcerting.  In the officer selection record (OSR) which AFPC  sent
him, the code 5B 30052 appears in the right  top  corner  of  the  PRF
(P0597B), that same code appears in another document (an OPR,  closing
17 Nov 96).  The fact that two documents in the same officer selection
record (OSR) have the same code leads  you  to  believe  their  common
thread or link is this Dec 97 lieutenant colonel promotion board.   At
a minimum, it is now evident  that  AFPC  has  difficulty  maintaining
separate “folders” of documents for separate and  distinct  promotions
boards, and who’s to say the correct PRF never made it to AFPC in time
for the board,  so  AFPC  pulled  the  old  PRF  from  microfiche  and
substituted it for the correct PRF.  The most  disconcerting  part  of
AFPC’s most recent advisory opinion is not, however, the  use  of  the
words 100 percent and never,  but  rather  the  last  sentence,  which
states:  “Therefore, without a doubt, Major Osburn’s OSR presented  to
the Dec 97 board had a PRF created for the Dec 97 board  and  not  the
PRF created for the Jun 97 board.”  AFPC has created the  doubt  which
they now are disclaiming knowledge of.

He believes that  the  senior  rater  for  the  P0597E  PRF  may  have
inappropriately reviewed his prior PRFs in determining his  course  of
action with regard to the  PRF  he  wrote.   He  believes  the  senior
rater’s improper look at his prior  PRFs  clearly  played  a  role  in
determining not to upgrade his PRF from a promote recommendation to  a
definitely promote recommendation.  The essence of his  argument  with
regard to the PRF for the December 1997  board  is  that:  1)  it  was
missing from his officer selection record; and 2)  the  one  that  was
written by the senior rater  was  tainted  by  pre-determination  with
prior PRFs.  Consequently, he requests that the BCMR  review  his  PRF
for  the  December  1997  board  and  make  a   fair   and   impartial
determination on whether it should be upgraded to a definitely promote
recommendation.  Should the BCMR determine an upgrade to  the  PRF  is
warranted, he requests that  the  upgrade  be  accomplished  and  then
factor the upgraded PRF into the BCMR’s final decision on his case.

He has additional concerns with regard to his Officer Selection Record
(OSR) for the December 1997 lieutenant colonel board as follows:

      a.  His Officer  Performance  Reports  (OPRs)  contain  numerous
handwritten extraneous markings that add no value to the  reports  and
may actually lead one to believe he faced  out-of-cycle  boards.   The
OPRs should be cleaned up prior to any further action being  taken  on
his record.

      b.  He never  received  the  preselection  brief  prior  to  the
December 1997 board, consequently, he did not have the opportunity  to
correct the inaccurate assignment history for  his  current  position.
As indicated on his PRF, he is the Chief of the General Torts  Branch,
not Trial Attorney as listed.  The  brief  should  accurately  reflect
that  he  is  a  Branch  Chief,  which  is  generally  recognized   in
Washington, DC, as a position of  greater  responsibility  than  trial
attorney and is considered a management position.  The  correction  to
his assignment history in the preselection brief should be made  prior
to any further action being taken on his record.

He requests that the Board grant him a direct promotion to  the  grade
of lieutenant colonel.  Each  board  he  has  faced  is  riddled  with
errors, injustices, discrepancies, and taints that no audit  or  human
being could alleviate.

A complete copy of this response is appended at Exhibit G.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

The Senior Attorney-Advisor, HQ AFPC/JA, stated  that,  after  further
research  with  the  applicant’s  duty  station,  AFLSA/JACT,  it  was
confirmed that the applicant’s correct duty title on 25 November  1997
(the date of the Officer Selection  Brief)  was  “Chief,  General  and
International Torts Branch,” and not “Trial Attorney,” as reflected on
the brief (Exhibit H).

The Selection Board Secretariat, HQ AFPC/DPPB, stated that they  stand
by their previously submitted advisory opinion of 29 June 1998 and are
unable to add anything further regarding applicant’s accusation.  With
regard to the  handwritten  extraneous  markings  on  the  applicant’s
Officer Performance Reports (OPRs), DPPB indicated that the extraneous
markings have been removed (Exhibit I).

The Appeals and SSB Branch, HQ AFPC/DPPPAB, defers to  AFPC/DPPB’s  29
Jun 98 advisory concerning the applicant’s contention that his Officer
Selection Record (OSR) that met the P0597E  selection  board  did  not
contain the P0597E Promotion Recommendation Form (PRF).  DPPPAB stated
that the handwritten notation in the top right-hand corner  (5E-30054)
of the P0597E PRF is an abbreviation of the P0597E board  ID  with  an
addition of the sequence number given to the applicant’s OSR  for  the
P0597E selection board.  When the P0597E PRF was  received  within  HQ
AFPC/DPPB, it was annotated with the applicant’s board ID and sequence
number so that it could be filed in the correct OSR.

DPPPAB noted that in the senior rater’s 3  June  1998  letter  to  the
applicant, he upheld his “Promote” recommendation   The  senior  rater
specifically stated  that  he  based  the  relook  for  a  “definitely
promote” recommendation on the applicant’s OPR closing  31  May  1997.
DPPPAB finds no basis for the applicant’s contention that  his  senior
rater used previous PRFs when considering upgrading the P0597E PRF  to
a “Definitely Promote” for SSB consideration.

The applicant contends his most recent duty title entry, effective  15
July 1997, was listed wrong in the Assignment History portion  of  the
P0597E Officer Selection Brief (OSB).  He believes it should have been
“Chief of the General Torts Branch” versus “Trial  Attorney.”   DPPPAB
noted that no corrective action was taken by the applicant to  correct
his duty title upon finding it in error.  A correction was  made  only
after a request by DPPPAB (see Exhibit H).  The  applicant’s  15  July
1997 duty title now reads “Chief, General Torts Branch.”  The  Officer
Preselection Briefs (OPBs) for the  P0597E  board  were  sent  to  the
Military Personnel Flights (MPFs) on 29 August 1997  and  should  have
been  distributed  to  those  eligible  for  promotion   consideration
approximately 10 days  later.   DPPPAB  indicated  that  although  the
applicant stated he did not receive his OPB for the P0597E  board,  he
was aware that he should have received one, and has not  provided  any
evidence of his attempts to obtain one from his  MPF.   The  applicant
received OPBs prior to both  of  his  below-the-promotion  zone  looks
(P0594A and P0595B) and his in-the-promotion zone look (P0597B).

DPPPAB does not understand the purpose behind the  applicant’s  appeal
to upgrade his P0597E PRF  to  a  “Definitely  Promote”  since  he  is
requesting direct promotion.   To  replace  the  applicant’s  PRF  and
directly promote him would be pointless.  Further, Air  Force  officer
promotions  are  a  competitive  process.   To  directly  promote  the
applicant would circumvent the competitive nature of that process.

DPPPAB stated that insufficient relevant evidence has  been  presented
to demonstrate the existence of probable error or injustice in  regard
to the applicant’s request  for  direct  promotion  to  the  grade  of
lieutenant colonel.  Absent clear-cut  evidence  the  applicant  would
have  been  a  selectee  by  the  P0597B  board,  we  believe  a  duly
constituted board applying the complete promotion criteria is  in  the
most advantageous position to render this vital determination.

Based on the evidence provided, DPPPAB recommended the application  be
denied.  A complete copy of this evaluation is appended at Exhibit J.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

He stated that if we were to adopt AFPC’s argument that  the  sequence
number on his 97B PRF (5B30052) proves that PRF only appeared  in  his
June 1997 board, would that logic also force you to conclude that  the
OPR two pages down, with the same sequence number  as  the  PRF,  only
appeared in the Jun 97 board, and thus was missing from  the  December
1997 board.  He  maintains  his  position  that  AFPC  has  difficulty
maintaining separate “folders” of documents for separate and  distinct
promotion boards.  Even if you accept AFPC’s position that  they  sent
him the wrong PRF in his FOIA request,  his  December  1997  selection
board  record,  which   they   maintain,   contains   numerous   other
ambiguities; therefore, a reasonable mind could conclude AFPC may also
have put the wrong PRF before his December 1997 promotion board.  Even
though a sequence number and/or board number is put on the  PRF,  this
is a process that occurs before the board  convenes.   This  does  not
guarantee the proper PRF appeared in the proper board.  Arguably,  the
only real evidence we have of what met  the  promotion  board  is  the
selection  record  obtained  from  the  FOIA  request.    Nonetheless,
fundamental fairness dictates that this doubt, which AFPC  created  in
the first place, should be resolved in favor of the applicant.

AFPC ignored his argument and  the  e-mail  from  his  senior  rater’s
executive officer seeking  his  last  three  PRFs.   This  independent
evidence establishes that the senior rater  may  have  inappropriately
reviewed his prior PRFs in  determining  his  course  of  action  with
regard to the PRF he wrote.   He  believes  that  the  senior  rater’s
improper look at his prior PRFs clearly played a role  in  determining
not to upgrade his PRF from a promote recommendation to  a  definitely
promote recommendation.  AFPC  failed  to  consider  General  Hawley’s
letter touching on this issue.

He reiterates his position with regard to the PRF:  1) it was  missing
from his officer selection record; and 2) the one that was written  by
his  rater  was  tainted  by  pre-determination   with   prior   PRFs.
Consequently, he requests  that  the  BCMR  review  his  PRF  for  the
December 1997 board and make a fair  and  impartial  determination  on
whether it should be upgraded to a definitely promote  recommendation.
Should the BCMR determine an upgrade  to  the  PRF  is  warranted,  he
requests that the upgrade be accomplished and then factor the upgraded
PRF into the BCMR’s final decision on his case.

AFPC has correctly changed his duty title  from  “Trial  Attorney”  to
“Chief of the General Torts Branch” on  his  Officer  Selection  Brief
(OSB).  He did take corrective action to correct his duty  title.   He
also made numerous requests for his Officer Preselection  Brief  (OPB)
and was told that the reason he had not received the OPB  was  due  to
his missing OPRs.  Aside from the other errors and injustices  in  his
above-the-promotion zone (APZ)  December  1997  promotion  board,  the
wrong duty title in his OSB  is  a  material  error  and  the  ensuing
injustice is selection board members may not have realized that he  is
filling  a  lieutenant  colonel  supervisory/management  position,  as
opposed to a staff attorney, action officer position.  Standing alone,
this material error  and  injustice  is  sufficient  justification  to
warrant a Special Selection Board (SSB).

He disagrees with the  opinion  that  to  upgrade  the  PRF  and  then
directly promote him would be pointless.  Upgrading the PRF would  not
only be warranted by the circumstances of his appeal, but such upgrade
could then assist  the  BCMR  in  determining  whether  to  grant  the
extraordinary relief of a Direct Promotion, or instead direct  an  SSB
to convene.

He agrees with AFPC that under normal circumstances, where records can
be accurately reconstructed, SSBs would suffice  in  resolving  errors
and injustices.  He is also aware that  a  direct  promotion  is  only
granted  in  the  most  unusual  of  circumstances.    His   promotion
opportunities were anything but normal  circumstances.   Extraordinary
circumstances are present in his case to warrant a  direct  promotion.
Specifically,  1)  an  intentional  act  by  another  military  member
directly  resulting  in  an  incomplete  officer   selection   record,
depriving  the  officer  full  and  fair  consideration;  2)  arguably
negligent acts  by  the  officers’  supervisors  again  depriving  the
officer of full and fair  consideration;  3)  pre-determination  by  a
senior rater with regard to a  PRF,  who  believed  that  the  officer
already had a fair shot at his IPZ board, when in fact he did not; and
4) a taint in the records from  being  passed  over  three  times  for
promotion that is  so  severe  that  even  when  AFPC  has  granted  a
correction (duty title) to the record, they either fail or  refuse  to
recognize their own record correction and grant an SSB.

Aside from the taints associated with his record,  AFPC’s  refusal  to
accurately reconstruct his records, in light  of  compelling  evidence
that corrective relief is appropriate,  is  extraordinary  in  and  of
itself.  AFPC’s refusal to  consider  all  available  evidence  before
them, and grant appropriate relief when a  correction  was  made,  now
makes this case and appeal ripe for  the  Board’s  intervention.   His
supervisor recommended a direct promotion.  He requests that  his  PRF
for the Dec 97 lieutenant colonel board be upgraded  to  a  Definitely
Promote and that he be considered for direct promotion.

He met a below-the-promotion zone (BPZ) lieutenant  colonel  selection
board in November 1995 without the MSM (1OLC) in his officer selection
record (OSR).  An achievement medal for a  special  project  at  Grand
Forks appears in his OSR as his  permanent  change  of  station  (PCS)
medal.  He believes that since HQ AFPC did not comment on  this  issue
in their  advisory  opinions,  they  must  concur  with  his  analysis
regarding the injustice.

A complete copy of this response is appended at Exhibit K.
_________________________________________________________________

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 with respect to  the  Officer
Performance  Report  (OPR),  closing  31  May  1997.   The  supporting
documents provided by the applicant  are  sufficient  to  cause  doubt
concerning the fairness and accuracy of the contested report.  In this
respect, we are persuaded by the statements of support from the rating
chain which specifically outline the reasons why the contested  report
is flawed and support the applicant’s request.  Having  no  reason  to
question the  integrity  of  the  evaluators,  we  conclude  that  the
applicant’s records should be corrected to substitute the revised OPR,
closing 31 May 1997, for the one  currently  in  his  records  and  to
afford  him  SSB  consideration  for  the  CY97B  Lieutenant   Colonel
Selection Board and for all boards  affected  by  replacement  of  the
cited OPR.  In addition, we  noted  that  the  appropriate  Air  Force
offices have  removed  the  extraneous  markings  on  the  applicant’s
Officer Performance Reports (OPRs) and corrected the applicant’s  duty
title to reflect Chief of the General Torts Branch  instead  of  Trial
Attorney.   Inasmuch  as  the  above  corrections  were   accomplished
subsequent to his consideration for promotion by the CY97B  and  CY97E
Lieutenant Colonel Selection Boards, we recommend that the applicant’s
corrected record be reviewed when he is considered for promotion by an
SSB.

4.  With regard to  changing  the  closing  date  of  the  Meritorious
Service Medal, 2nd Oak Leaf Cluster, the applicant’s contentions  have
been  duly  noted.   However,  we   agree   with   the   opinion   and
recommendation of the appropriate  Air  Force  office  (HQ AFPC/DPPPA)
that the inclusive dates of the award are accurate.  Absent sufficient
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought.  As to the applicant’s  Officer  Selection
Record (OSR) not having a legible copy of the  citation  for  the  Air
Force Commendation Medal (AFCM), after reviewing the copy in his  OSR,
we did not find it to be illegible.  Hence, no action is  required  on
this issue.

5.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice with regard  to  changing
the applicant’s Promotion Recommendation Form (PRF), prepared for  the
CY97E (P0597E)  Lieutenant  Colonel  Board,  from  a  “Promote”  to  a
“Definitely Promote”.  We took  notice  of  the  applicant’s  complete
submission in judging the merits of the case.  The  applicant  asserts
that the contested PRF was missing from his OSR based on the documents
he received through his FOIA request; and, that the  PRF  rendered  by
the senior rater was tainted by  pre-determination  with  prior  PRFs.
In this respect, we note the statement from the senior rater indicated
that the contested PRF is  an  accurate  reflection  and  he  did  not
support upgrading  the  PRF.   We  are  unpersuaded  by  the  evidence
presented that the contested PRF was improperly prepared or  that  the
assessment in the  PRF  had  its  basis  in  factors  other  than  the
applicant’s demonstrated performance and performance-based  potential.
Additionally, we are unpersuaded that  the  applicant’s  OSR  did  not
contain the correct PRF at the time he was considered for promotion by
the CY97E (P0597E) selection board.  In this respect,  the  Air  Force
office of primary responsibility (HQ  AFPC/DPPB)  indicated  that  the
member’s records are audited prior to  consideration  by  a  selection
board to  ensure  each  OSR  has  a  current  PRF.   Even  though  the
applicant’s FOIA package  contained  the  wrong  PRF,  this  does  not
convince us that his OSR did not contain the proper PRF at the time he
was considered  by  the  P0597E  selection  board.   In  view  of  the
foregoing and in the absence of substantial evidence to the  contrary,
we find no compelling basis  to  recommend  favorable  action  on  the
applicant’s request for a change on the cited PRF.

6.  We have noted the applicant’s request for SSB consideration by the
CY95B (27 November 1995) Lieutenant colonel Selection Board for below-
the-promotion zone (BPZ), with inclusion  of  the  MSM  (1OLC)  and  a
corrected OSB.  The allegation concerning the destruction of  the  MSM
(1OLC) by a disgruntled airman was duly noted and  it  is  unfortunate
this incident occurred.  However, we note that  the  applicant  waited
approximately one year after his permanent  change  of  station  (PCS)
from Grand Forks to make  an  inquiry  concerning  the  decoration  in
question.  We observed the letter from applicant’s  former  supervisor
who  informed  the  applicant,  at  that  time,   that   “they   would
reaccomplish his MSM and that it should be in his records prior to his
1995 lieutenant colonel  board.”   This  does  not,  in  our  opinion,
substantiate that the award  resubmission  request  was  initiated  in
sufficient time to have it approved and awarded  prior  to  the  CY95B
(P0595B) selection board.  In addition, we have seen no evidence which
would lead us to believe that had the decoration been in his record he
would have been a selectee for promotion by the P0595B board.  In  the
absence of evidence to the contrary, we conclude that no basis  exists
to recommend favorable action  on  the  applicant’s  request  for  BPZ
consideration.

7.  With regard to applicant’s request for direct promotion, the Board
observes that officers compete for promotion under  the  whole  person
concept whereby many  factors  are  carefully  assessed  by  selection
boards.  An officer  may  be  qualified  for  promotion  but,  in  the
judgment of a selection board vested with the discretionary  authority
to make the selections,  may  not  be  the  best  qualified  of  those
available for the limited number of promotion  vacancies.   Therefore,
in the absence of  clear-cut  evidence  that  he  would  have  been  a
selectee had his folder reflected the recommended changes, we  believe
that  a  duly  constituted  selection  board  applying  the   complete
promotion criteria is in the most advantageous position to render this
vital determination, and that its prerogative to do so should only  be
usurped under extraordinary circumstances.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

      a.    The Field Grade Officer Performance Report, AF Form  707A,
rendered for the period 18 November  1996  through  31  May  1997,  be
declared void and removed from his records.

       b.     The  attached   reaccomplished   Field   Grade   Officer
Performance Report, AF Form 707A, rendered for the period  18 November
1996 through 31 May 1997, be inserted in his records in place  of  the
voided OPR.

It is further recommended that he be considered for promotion  to  the
grade of lieutenant colonel by a Special Selection Board  for  the  CY
97B (2 June 1997) Lieutenant Colonel  Selection  Board,  and  for  any
subsequent board for which the revised OPR, closing 31 May  1997,  was
not  a  matter  of  record;  with  inclusion  of  the  clean   Officer
Performance Reports (OPRs) and the corrected assignment history on the
officer selection  brief  (OSB)  for  the  CY97E  (P0597E)  lieutenant
colonel selection board.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 23 March 1999, under the provisions  of  AFI  36-
2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Ms. Olga M. Crerar, Member
              Ms. Dorothy P. Loeb, Member

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

   Exhibit A.  DD Form 149, dated 17 Dec 97, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPA, dated 23 Jan 98.
   Exhibit D.  Letters, SAF/MIBR, dated 9 Feb 98, AFBCMR, dated
               14 Jul 98, and MIBR, dated 14 Dec 98.
   Exhibit E.  Letters from applicant, dated 2 Mar 98, 6 Apr 98,
                   28 Apr 98 and 6 May 98, w/atchs.
   Exhibit F.  Letter, HQ AFPC/DPPB, dated 29 Jun 98.
   Exhibit G.  Letter from applicant, dated 21 Jul 98, w/atchs.
   Exhibit H.  Letter, HQ AFPC/JA, dated 28 Oct 98.
   Exhibit I.  Letter, HQ AFPC/DPPB, dated 2 Nov 98.
   Exhibit J.  Letter, HQ AFPC/DPPPAB, dated 19 Nov 98, w/atchs.
   Exhibit K.  Letter from applicant, dated 22 Dec 98, w/atchs.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair

INDEX CODE:  131.00
AFBCMR 97-03777




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:

            a.   The Field Grade Officer Performance Report, AF Form
707A, rendered for the period 18 November 1996 through 31 May 1997,
be, and hereby is, declared void and removed from his records.

            b.   The attached reaccomplished Field Grade Officer
Performance Report, AF Form 707A, rendered for the period 18 November
1996 through 31 May 1997, be inserted in his records in place of the
voided OPR.

      It is further directed that he be considered for promotion to
the grade of lieutenant colonel by a Special Selection Board for the
CY 97B (2 June 1997) Lieutenant Colonel Selection Board, and for any
subsequent board for which the revised OPR, closing 31 May 1997, was
not a matter of record; with inclusion of the clean Officer
Performance Reports (OPRs) and the corrected assignment history on the
officer selection brief (OSB) for the CY97E (P0597E) lieutenant
colonel selection board.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency

Attachment:
Reaccomplished OPR