RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 00-01035 (Case 3)
                 INDEX CODE 131.01
      XXXXXXXXXXXXX    COUNSEL:  None

      XXXXXXXXXXXXX    HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

He be given consideration by Special Selection  Board  (SSB)  for  the
Calendar Year 1999A (CY99A) Lieutenant Colonel (LTC) Central Selection
Board with his Officer Selection Brief (OSB) reflecting  he  completed
Air Command and Staff College (ACSC) in 1999.

[Applicant originally requested that the date  of  his  completion  of
ACSC be masked; however, in his rebuttal he asked  that  the  year  of
1999 be included.]
_________________________________________________________________

APPLICANT CONTENDS THAT:

Due to unfavorable circumstances beyond his control,  he  suffered  an
injustice during his in-the-promotion-zone (IPZ) consideration to LTC.
He had less than two years  eligibility  to  complete  ACSC  prior  to
consideration for LTC IPZ in Apr 99, whereas his peers  had  at  least
four and one-half years. He  is  certain  not  having  completed  ACSC
adversely  affected  his  promotion  opportunity  and  put  him  at  a
disadvantage compared to his peers.  Completing it in a  shorter  time
than his peers demonstrates his diligence in completing the task.

A copy of applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on extended active duty as a  major
with a date of rank (DOR) of 6 Feb 95.

The applicant had been involuntarily separated as a captain on  29 Feb
96 for two nonselections for major. However, on 29 Jul 96 he  received
SSB consideration for the CY94A board and was selected for major. As a
result of an earlier AFBCMR action, he was subsequently reinstated  to
active duty as a major in May 97 without a break in service.   A  copy
of the Addendum to Record of Proceedings (ROP) is provided at  Exhibit
C.

Around 17 Jul 97, the applicant was assigned to Osan Air Base,  Korea,
and around 9 Aug 99, he was  reassigned  to  Davis-Monthan  Air  Force
Base, AZ.

As a result of now having no break in service and with less  than  two
years in the grade of major, the applicant was considered IPZ  by  the
CY99A LTC board on 15 Apr  99  but  not  selected.   The  professional
military education (PME) section of the CY99A OSB  indicated  that  he
completed  Squadron  Officer  School  (SOS)  in  1990.  The  Promotion
Recommendation Form (PRF) had an overall recommendation of “Promote.”

The applicant was also considered above-the-promotion-zone  (APZ)  but
nonselected by the CY99B LTC board, which convened on 30 Nov 99.   His
OSB reflected completion of ACSC in 1999.  The applicant  submitted  a
letter to the  CY99B  Board  President  explaining  the  circumstances
surrounding his completion of ACSC in less than two years. The PRF had
an overall recommendation of “Promote.”

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Appeals & SSB Branch, HQ AFPC/DPPPA,  reviewed  the  appeal
and provided her rationale for recommending denial.

A copy of the complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  contends  that,  contrary  to  the  advisory  opinion’s
assertion, he is not  seeking  an  unfair  advantage  over  his  peers
through this appeal---he’s seeking to rectify the unfair advantage his
peers had over him. He wants to remedy an injustice by having  a  fair
chance at an IPZ consideration that takes into account  his  diligence
in completing ACSC in less than half the time given his peers, despite
exceptionally challenging circumstances. In Dec 98  he  was  diagnosed
with a disease, placed on medication, had a serious  reaction  to  the
medication and met a medical evaluation board (MEB). In  Jun  99,  the
MEB recommended he be kept on active duty, and  he  returned  from  an
overseas  assignment  in  Aug  99.  Without  his  records   indicating
completion of ACSC [in the IPZ], he has no  realistic  hope  of  being
considered for promotion. Regardless of how well he pled his  case  in
the letter to the CY99B Board President, he was still  a  “passed-over
major,” and that very likely caused a biased opinion among  the  board
members.  These  discriminators  are  a  consequence  of  the  earlier
injustice [1996 separation] that was only partially rectified when  he
was offered a retroactive promotion.  Since the  OSB  merely  reflects
the year in which the course was completed, let his [CY99A}  OSB  show
he completed ACSC in 1999 because the record would still be factual.

The applicant’s complete response is at Exhibit F.
_________________________________________________________________

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.  The applicant  requests
SSB consideration for the CY99A LTC board with the OSB reflecting ACSC
completion in 1999. He contends his reinstatement by a previous  Board
action gave him insufficient time to complete ACSC  before  the  CY99A
board convened.  He did complete ACSC in Nov 99 in time for the  CY99B
board’s consideration. The  applicant  is  convinced  his  not  having
completed this PME when he was first eligible  for  LTC  consideration
resulted in his nonselection.  However, as set forth in our discussion
below, we believe the PME issue will become a non-factor.

4.    In reviewing the applicant’s records, we noted a possible  error
and injustice he has not raised.  By SSB consideration on 29  Jul  96,
the applicant was promoted to major. As a result  of  this  promotion,
the Air Force recommended and the Board directed that he be reinstated
with no break in service. The reinstatement made him eligible for  IPZ
promotion consideration by the CY99A LTC board, but he only  had  time
to acquire one Officer Performance Report (OPR) as a major before  the
CY99A board convened.  Although  the  applicant  did  not  raise  this
issue,  we  believe  his  not  having  sufficient  time  to  build   a
performance record as a major before being considered IPZ for LTC  may
have contributed to his nonselection. Since the  US  Court  of  Claims
decision in the case of Yee v. US, the AFBCMR has typically  specified
that any promotion nonselections  a  reinstated  officer  may  receive
prior to attaining at least two or three OPRs in the previous grade be
set aside.  Apparently, when the Air Force recommended  the  applicant
be reinstated, this issue was not surfaced and the provision  allowing
a member time to  build  a  performance  history  prior  to  promotion
consideration was not included in the directing instrument.  In  order
to overcome a continuing injustice, we believe this  oversight  should
be rectified. Further, as a first-time eligible with  additional  OPRs
in his selection  folder  for  his  senior  rater(s)  to  review,  the
applicant’s chances for a “Definitely Promote” recommendation  on  his
Promotion  Recommendation  Form(s)  could  conceivably  be   enhanced.
Therefore,  in  fairness   to   the   applicant   we   recommend   his
nonselections, including the one he may receive by the CY00A LTC board
scheduled to convene this November, be set aside so he can compete IPZ
with an adequate record to assess  by  the  next  regularly  scheduled
board. Finally, since the applicant completed ACSC in Nov 99, the OSBs
for his subsequent promotion considerations will reflect this fact and
the PME issue becomes moot.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that he was not considered
for promotion to the grade of lieutenant colonel by the Calendar  Year
1999A (CY99A) and CY99B Lieutenant  Colonel  (LTC)  Central  Selection
Boards.

It is further recommended that if he is not selected for promotion  to
the grade of  lieutenant  colonel  by  the  CY00A  Lieutenant  Colonel
Central Selection Board, then his records be corrected to show he  was
not considered by the CY00A Board.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 26 September 2000, and under  the  provisions  of
AFI 36-2603:

            Mr. Richard A. Peterson, Panel Chair
            Mr. Steven A. Shaw, Member
            Ms. Marilyn Thomas, Member

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

   Exhibit A.  DD Form 149, dated 10 Apr 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Addendum to ROP dated 28 Jan 97, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPPA-, dated 2 May 00.
   Exhibit E.  Letter, SAF/MIBR, dated 12 May 00.
   Exhibit F.  Letter, Applicant, dated 7 Jun 00.




                                   RICHARD A. PETERSON
                                   Panel Chair




AFBCMR 00-01035




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 XXXXXXXXXXXX, be corrected to show that he was not
considered for promotion to the grade of lieutenant colonel by the
Calendar Year 1999A (CY99A) and CY99B Lieutenant Colonel (LTC) Central
Selection Boards.

      It is further directed that if he is not selected for promotion
to the grade of lieutenant colonel by the CY00A Lieutenant Colonel
Central Selection Board, then his records be corrected to show he was
not considered by the CY00A Board.






   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency