RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-00453
            INDEX NUMBER:  111.01, 131.00,
                                107.00, 135.02,

            COUNSEL:  MR. GARY R. MYERS

            HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

The Officer Performance Reports (OPRs)  closing  5  December  1995,
5 December 1996, and 1 July 1997 be expunged from his records.

The Promotion Recommendation Forms (PRFs) for the A0598D [FY98] and
A0599D [FY99] Air Force Reserve Lieutenant Colonel Selection Boards
be expunged from his records.

He be considered for promotion to the grade of  lieutenant  colonel
by Special Selection Board (SSB).

If selected for promotion, he be promoted to lieutenant colonel  on
the date commensurate with his date of rank; and he be granted back
pay and allowances from the date of promotion to the present.

He be granted back pay and allowances from July 1997 to the present
for the days he would have worked had he not been forced  from  the
XXXth  Wing.

He be granted credit for time in grade from 1 July 1997 to  present
for pay, promotion, and retirement purposes based on the number  of
days he actually worked plus the  number  of  days  he  would  have
worked [had he not been forced from the XXXth Wing].

He be assigned to a category A position immediately  in  the  XXXXX
area.

He be awarded the Air Force Commendation Medal for  his  almost  13
years of service with the XXXth Wing.

APPLICANT CONTENDS THAT:

Through counsel, applicant contends that  in  1995,  he  discovered
that his command section had  forged  both  the  contents  and  the
“rater” signature on an OPR wherein  he  (the  applicant)  was  the
alleged rater.  When he brought the forgery to the attention of his
command section, he suffered serious reprisals, to include, but not
limited to:  two faint praise OPRs [closing  5  December  1995  and
5 December 1996]; an OPR tantamount to a referral [closing  1  July
1997]; denial of an award  which  had  a  direct  effect  upon  his
promotability;  removal  from  a  lieutenant  colonel  slot  to   a
captain’s slot; forced from a category A job to a category  E  job;
and twice deferred for promotion to lieutenant colonel.

In his appeals to  the  Evaluation  Reports  Appeal  Board  (ERAB),
applicant stated that the OPR closing 1 July 1997 and the  PRF  for
the A0598D [FY98] Lt Colonel Selection Board are unjust and illegal
because they  were  made  in  “reprisal”  for  making  a  protected
communication.   In  addition,  the  OPR  also   contains   another
violation,  in  that,  not  only  did  the  rater  not  conduct   a
performance feedback session, but the date he put on  the  OPR  for
having accomplished the performance feedback (18 April 1997) was  a
day in which he (the applicant) wasn’t even on duty  at  the  unit.
He also suspects that the signatures of the reviewer  on  the  OPR,
and the senior rater on the PRF, are forgeries.

Counsel’s complete statement and documentary evidence in support of
the applicant’s appeal are at Exhibit A.

STATEMENT OF FACTS:

On 2 June  1977,  applicant  was  appointed  a  second  lieutenant,
Reserve of the Air Force.  He was ordered to extended  active  duty
on 8 March 1978.  He was progressively promoted  to  the  grade  of
captain.  On 14 February  1984,  he  was  honorably  released  from
active duty and transferred to the Reserve of the  Air  Force.   At
the time of his release from active duty, he was  credited  with  5
years, 11  months,  and  7  days  of  active  Federal  commissioned
service.

Information extracted from the Personnel Data System (PDS) reflects
that the applicant was promoted to the Reserve grade of major  with
an effective date and date  of  rank  of  8  March  1990.   He  was
considered but not selected for promotion  by  the  FY98  and  FY99
Reserve of the Air Force Lieutenant Colonel Selection Boards.

A resume of the applicant’s non-EAD OERs/OPRs follows:

     PERIOD CLOSING    OVERALL EVALUATION

        9 Aug 85 1-1-1
        9 Aug 86 1-1-1
        9 Aug 87 1-1-1
       17 Jul 88 1-1-1
       22 Jan 89 Meets Standards (MS)
        5 Dec 89 MS
        5 Dec 90 MS
        5 Dec 91 MS
        5 Dec 92 MS
        5 Dec 93 MS
        5 Dec 94 MS
   *    5 Dec 95 MS
   *    5 Dec 96 MS
   */#  1 Jul 97 MS
        1 Jul 98 MS
       31 Mar 99 MS

* Contested reports.

# Applicant submitted an appeal to the ERAB requesting that the OPR
closing 1 July 1997 and the PRF for the  A0598D  Board  be  removed
from his records.  His appeal was denied by the ERAB on 18 February
1998 and again on 8 June 1998.

The Promotion Recommendation Forms (PRFs) reviewed by the FY98  and
FY99 ResAF Lieutenant  Colonel  Selection  Boards  contain  overall
promotion recommendations of “Promote.”

The duty history in the PDS reflects that the applicant’s duty  was
changed to USAF Admissions Liaison Officer, effective 2 July 1997.

Effective 25 July 1999, the applicant was assigned to  the  Retired
Reserve Section (awaiting pay at  age  60).   The  ANG/USAFR  Point
Credit Summary prepared 14 September 1999 reflects that at the time
of applicant’s assignment to the Retired Reserve  he  was  credited
with 22 years of satisfactory Federal service.

Available documentation reflects that:

On 9 March 1997, the applicant filed a complaint with the Secretary
of the Air Force (SAF/IGQ) alleging the squadron commander reprised
against him for a protected disclosure by  removing  him  from  his
lieutenant colonel position in the squadron and reassigning him  to
a captain’s position in the group.  An investigation of applicant’s
complaint found that his allegations were unsubstantiated.

On 30 June 1997,  applicant  filed  a  complaint  with  the  SAF/IG
alleging reprisal against him by members of his  chain  of  command
for making a protected disclosure, by threatening him with a letter
of reprimand during the Apr 97 UTA, denying him the opportunity  to
participate in an official unit  activity  during  July  1997,  not
considering him for an award  after  he  was  reassigned  from  the
squadron, denying him extra mandays when they  were  available  for
other officers, and not  reassigning  him  to  a  more  responsible
position within the group during the 1996 and 1997  timeframe.   An
investigation was conducted  and  found  that  the  allegations  of
reprisal were unsubstantiated.

On 22 August 1997, applicant filed a complaint  with  the  DoD  IG,
which  was  forwarded  to  the  SAF/IG,  which  included  the  same
allegations made in his March 1997 and June 1997  complaints,  plus
additional allegations of reprisal against the wing commander,  and
other officers of his chain of  command.   Specifically,  that  the
squadron, group, and wing commanders reprised against him rendering
adverse OPRs on 18 Dec  96  and  10  Jul  97,  and  that  the  wing
commander reprised against him by rendering an adverse PRF for  the
FY98 Lieutenant Colonel Promotion Board.  The  investigation  found
that the applicant’s allegations of reprisal were unsubstantiated.

AIR FORCE EVALUATION:

The Director of Personnel Program Management, ARPC/DP,  recommended
denial of applicant’s requests, stating, in part, that the basis of
the application is the applicant’s allegation that he is the victim
of reprisal by officers in his  previous  chain  of  command.   The
inspector general and the applicant’s  chain  of  command  are  the
appropriate offices to address that issue.

Noting the applicant’s contentions that the 1 July 1997 OPR and the
A0598D PRF were acts of reprisal,  DP  stated  there  is  no  clear
evidence to indicate they are anything but an  accurate  assessment
of the applicant’s performance.  The applicant provided no evidence
that the 5 Dec 96, 5 Dec 95 OPRs and the A0599D  PRF  are  anything
other than an accurate assessment of his performance.

Whether to award a decoration or  not  rests  with  the  decoration
approval authority.   Decorations  are  not  automatically  awarded
after a pre-determined event.  In this case,  anyone  having  first
hand knowledge of the applicant’s performance may recommend him for
a decoration.  The appropriate  approval  authority  then  has  the
option of approving or disapproving the decoration.

The complete evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the advisory opinion, counsel stated  that  this
is not a case of reprisal.  This is a case of abuse  of  authority.
(Exhibit E)

By letter, dated 29 August 1999, applicant notified the Board  that
he wanted this application to be processed under the provisions  of
10 USC 1034, Military Whistleblower Protection Act.  On  7  October
1999, counsel concurred with  applicant’s  request  to  treat  this
matter as a reprisal case.  (Exhibit F)

In his  letter  of  13  September  1999,  applicant  expressed  his
dissatisfaction  with  the  Inspector  General  investigations  and
provided his expanded comments addressing findings in  the  Reports
of Investigation.

Applicant’s complete statement, with attachments, is at Exhibit G.

By letter dated 19 October 1999, applicant provided the results  of
his request for a signature examination of the contested  OPRs  and
PRF.  (Exhibit H)

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.
3.  After careful consideration of the evidence available  for  our
review, we are not persuaded that the contested Officer Performance
Reports (OPRs) and  Promotion  Recommendations  Forms  (PRFs),  the
denial of an award, and the  assignment  actions  taken  while  the
applicant was a member of the military were  in  reprisal  for  his
making a protected communication.  The Board notes that the DoD  IG
reviewed  the  Department  of  the  Air  Force  Inspector   General
investigations and found that applicant’s allegations  of  reprisal
were  unsubstantiated.   Since  the  applicant’s   allegations   of
reprisal have not been substantiated, it would appear that his case
should not be treated under the Military  Whistleblower  Protection
provisions.  Accordingly, his case was considered  by  this  Board,
not as a whistleblower case, but as any other application submitted
to the Board alleging error or injustice, as provided by Title  10,
US Code, Section 1552.

4.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the existence of probable error or injustice warranting
corrective action.  After careful consideration of the  applicant’s
complete submission, as well as the Department  of  the  Air  Force
Inspector General investigations, we are  not  persuaded  that  the
individuals  responsible  for  assessing   the   applicant’s   duty
performance and promotion potential were unable to render  unbiased
assessments of his duty performance or that the contested OPRs  and
PRFs were based on any factors  other  than  the  applicant’s  duty
performance during the periods in question.  In  addition,  we  did
not find the lack of a feedback session, in and of itself, to be  a
sufficient  basis  to  invalidate  the  OPR  closing  1 July  1997.
Applicant contends that the reviewer’s signature on the OPR closing
1 July 1997 and the senior rater’s signature on  the  PRF  for  the
FY98 Reserve of the Air Force Lieutenant  Colonel  Selection  Board
may be forgeries.  However, a review of the documentation  provided
did  not  convince  us  that  anyone  other  than  the   designated
individual signed these two documents.  Based on the foregoing, and
in the absence of evidence to the contrary, we find  no  compelling
basis to recommend favorable action on the applicant’s  request  to
expunge the contested OPRs and PRFs from his records.

5.  Having found no evidence that the contested OPRs and  PRFs  are
inaccurate  or  unjust  assessments   of   the   applicant’s   duty
performance and promotion potential during the periods in question,
or that  the  reports  were  prepared  contrary  to  the  governing
instructions, the Board concludes that there is no basis upon which
to recommend  favorable  action  on  the  applicant’s  request  for
consideration for promotion to the grade of lieutenant  colonel  by
Special Selection Board.

6.  Applicant’s contention that he was  denied  an  award  is  duly
noted.  However, the decision whether to award a decoration or  not
rests with the decoration approval authority.   The  applicant  has
not provided any evidence to  show  that  the  decoration  approval
authority abused its discretionary authority in not considering the
applicant for an award when he was reassigned.  In the  absence  of
evidence to the contrary, we find no basis  to  favorably  consider
the applicant’s request for award of  the  Air  Force  Commendation
Medal.

7.  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 6 January 1999, under the provisions of AFI 36-
2603:

      Mr. Charles E. Bennett, Panel Chair
      Mr. Michael V. Barbino, Member
      Ms. Kathy L. Boockholdt, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Feb 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records; DoD IG 1034
                Complaint #H97L66141267, DoD 1034 Reprisal
                Investigation AFRC #98-012, and SAF IG Report of
                Investigation #S5799P - withdrawn.
    Exhibit C.  Letter, ARPC/DP, dated 17 Mar 99.
    Exhibit D.  Letter, SAF/MIBR, dated 5 Apr 99.
    Exhibit E.  Letter from Counsel, dated 5 Jun 99.
    Exhibit F.  Letter from Applicant, dated 29 Aug 99; letter
                from Counsel, dated 7 Oct 99.
    Exhibit G.  Letter from Applicant, dated 13 Sep 99, w/atchs.
    Exhibit H.  Letter from Applicant, dated 19 Oct 99, w/atchs.




                                   CHARLES E. BENNETT
                                   Panel Chair