RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-02000
            INDEX CODE:  107.00, 111.05
      APPLICANT  COUNSEL:  Mr. Robert E. Bergman

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be retroactively promoted to the grade of  lieutenant  colonel  effective
the first date eligible with his year group; his Officer Performance  Report
(OPR) rendered for the period 18 May 93 through 17 May 94, be  removed  from
his records; he be awarded a Meritorious Service  Medal,  or  higher  award,
for his tour of  service  at  Brooks  AFB;  he  receive  all  back  pay  and
allowances; and, he be reimbursed for all legal and personal  expenses  that
he has incurred.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Award of an MSM or higher level award for his  tour  of  service  at  Brooks
AFB, is necessary to prevent discrimination by future boards.  The  lack  of
being awarded a medal upon permanent change of station (PCS) is viewed as  a
sign of substandard duty performance.

He received a retaliatory  OPR  for  not  being  a  "team  player"  and  for
"blowing the whistle" regarding  questionable  medical  bills  sent  to  the
Department of Veterans Affairs (DVA).   He  requested  the  OPR  be  voided,
however, on 15 May 95, AFPC officials only approved replacing the  OPR  with
a corrected report.  In June, 2000, he discovered  that  the  corrected  OPR
was never filed in his Unit Personnel Records Group (UPRG) at  the  Military
Personnel Flight (MPF).  As a result, his OPRs and Promotion  Recommendation
Forms (PRFs) written since 1994 were based on incorrect information.

Prior to receiving his retaliatory OPR he was considered a "rising  star  to
be groomed for senior officer position" as  evidenced  by  an  AF  Form  90,
Assignment  Worksheet,  processed  in  conjunction   with   the   Commanders
Involvement Program which further stated that "his career should be  closely
monitored to take full advantage of his abilities (drive,  intelligence  and
can-do attitude)" and designated him as "destined for  a  senior  leadership
position."   This  AF  Form  90,  stands  in  stark  contrast  to  the  weak
wonderful/retaliatory OPR written by  the  same  rater  just  a  few  months
later.

In support of his request  applicant  has  provided  a  personal  statement;
copies of the contested and corrected OPRs; and, documents  associated  with
the issues raised in his contentions.  His complete submission  is  appended
at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force on  11
Jul 80 and was voluntarily ordered to extended active duty  on  15  Nov  80.
He was integrated into the Regular Air Force  on  1  Dec  86  and  has  been
progressively promoted to the grade of major, effective and with a  date  of
rank of 1 Jan 93.   Information  contained  in  the  Personnel  Data  System
reveals that he has an established date of separation (DOS) of 30 Nov 04.

Applicant was considered and not selected for  promotion  to  the  grade  of
lieutenant colonel, below-the-promotion zone (BPZ), by the CY96C  and  CY97C
selection boards.  He was  considered  and  not  selected,  in-the-promotion
zone (IPZ), by the CY98B selection board, and considered  and  not  selected
above-the-promotion zone (APZ), by the CY99A  and  CY99B  selection  boards.
Applicant was considered and not selected for  promotion  to  the  grade  of
lieutenant colonel by Special Selection Board (SSB) for the CY98B  selection
board on 15 May 00, and was considered for promotion to  lieutenant  colonel
on 28 Aug 00, by SSB, for the CY99A selection board.

Applicant's OPR profile  since  promotion  to  the  grade  of  major  is  as
follows:

            PERIOD ENDING         OVERALL EVALUATION

                 17 May 93              Meets Standards
             *17 May 94                 Meets Standards
                 14 Jun 95              Meets Standards
                 26 Feb 96              Meets Standards
                 26 Feb 97              Meets Standards
                 30 Sep 97              Meets Standards
                 01 Mar 98              Meets Standards
                 19 Jan 99              Meets Standards

* - Contested report.  On 15 May 95, as  a  result  of  his  appeal  to  the
Evaluation Reports Appeal Board (ERAB),  the  applicant  was  notified  this
report was to be removed from his  record  and  replaced  with  a  corrected
copy.

The applicant has been granted SSB consideration for  the  CY98B  and  CY99A
boards based on a missing Defense Meritorious Service Medal.

_________________________________________________________________


AIR FORCE EVALUATION:

The Chief, Awards and Decorations Section, AFPC/DPPPR, reviewed  applicant's
request  and  recommends  denial.   DPPPR  states  that  applicant  has  not
provided any documentation showing that his supervisor  or  other  officials
at Brooks AFB retaliated against or had a  personality  conflict  with  him.
He has not provided evidence that he made inquiries regarding the lack of  a
decoration for his tour  of  duty  at  Brooks  AFB.   A  decoration  is  not
automatic upon an individual's PCS from and  organization.   It  is  at  the
supervisor's and commander's discretion to  submit  a  decoration  based  on
outstanding achievement or meritorious service (see Exhibit C).

The Chief, Appeals and SSB Branch, AFPC/DPPPA, reviewed applicant's  request
and recommends  denial.   Regarding  the  applicant's  contention  that  his
corrected OPR was not on file in his UPRG for use  on  preparing  subsequent
OPRs and PRFs, DPPPA states that the applicant  must  appeal  the  pertinent
OPRs and PRFs under the provisions of AFI 36-2401,  Correcting  Officer  and
Enlisted Evaluation Reports.

DPPPE states that the contested OPR has been a matter  of  record  for  each
the applicant's promotion boards.  DPPPE cites  and  agrees  with  the  ERAB
September 1999 conclusion that there is insufficient evidence  available  to
substantiate retaliation or personality conflict as the basis  for  removing
the OPR and they do not support it's removal.

DPPPE states that other than the applicant's own opinions, he  has  provided
no substantiation for his  allegations  that  warrant  direct  promotion  to
lieutenant colonel.  Absent clear-cut  evidence  that  the  applicant  would
have  been  a  selectee,  a  duly  constituted  SSB  applying  the  complete
promotion criteria is in  the  most  advantageous  position  to  render  the
determination.

DPPPE's complete submission, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant responded to  the  advisory  opinions  and  states
that the request for award of the MSM for the applicant was made  contingent
upon removal of the retaliatory OPR from his records and/or his  retroactive
promotion.  Applicant's outstanding accomplishments, most significantly  his
detection of a significant violation  of  government  policy  is  more  than
significant justification for award of the medal.

Documentation provided by the applicant; a memorandum signed  by  his  rater
showing he was fired/removed from the DVA  overcharging  matter  because  he
had concerns about the DVA rate charged and type of  agreement  being  used,
memos sent to HSC/IG and HSC/JAG showed their  knowledge  of  the  situation
and improper activities, a copy of his involuntary  transfer  from  the  HSC
Comptroller organization, and the DOD/GC recommendation that  SAF/FM  review
all similar rates for accounting propriety, clearly support the  applicant's
claim of retaliation/personality conflict.

Counsel states that the applicant has provided convincing evidence that  the
amended OPR was not written by the senior rater, but instead was  negotiated
with and written by another major at Brooks AFB, making  the  corrected  OPR
of no legitimacy.

An overwhelming case has been  established  to  show  that  retaliation  and
wrongful  personal  conflict  did  occur,  thus  making  additional  witness
statements unnecessary.  Applicant has been retaliated against  and  treated
unjustly  for  being  honest  and  adhering  to  federal  ethics  standards.
Immediate and retroactive promotion is the most proper and  just  resolution
to his nonselection for promotion.

In support of his rebuttal, applicant's counsel has attached  extracts  from
the October 1995 U.S. General Accounting Office (GAO) testimony  before  the
Subcommittee on Hospitals and Health Care and the May  2000  GAO  report  to
Congressional Requestors. His complete submission is appended at Exhibit  F.


_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.

      a.  In regards to  the  applicant's  request  that  he  be  awarded  a
Meritorious Service Medal, or higher award, for  his  tour  at  Brooks  AFB;
award of a medal upon permanent change of station (PCS)  is  not  automatic,
but, at the discretion of the individual's supervisor and/or commander.   We
carefully reviewed his contentions and available records, and conclude  that
his accomplishments, in and by themselves, do not compel us to believe  that
award of said medal is warranted.

      b.  We are not persuaded by the evidence  presented  that  removal  of
the contested OPR is warranted.  We took note  that  the  ERAB  removed  and
replaced the contested  report  with  a  reaccomplished  OPR  as  previously
requested by the applicant.  The  applicant  contends  that  he  received  a
"retaliatory" OPR in response to his identification of questionable  billing
practices.  The applicant's  contentions  are  duly  noted,  however,  after
carefully  reviewing  the  evidence  provided,  we  find  his  claim  to  be
unsubstantiated  and  are  not  persuaded  by  the  mere  assertion  of  its
"weakness," alone, renders the removal of the OPR appropriate.   Rather,  it
is our opinion that the applicant was afforded proper and fitting relief  by
the ERAB's action. Therefore, we agree with the opinion  and  recommendation
of the Air Force offices of primary responsibility concerning the  contested
report and the  applicant's  request  for  direct  promotion  to  lieutenant
colonel; and, we adopt their rationale as the basis  for  our  determination
that the applicant has failed to sustain his burden  that  he  has  suffered
either an error or injustice in this matter.  Accordingly, in light  of  the
above, we find no compelling basis upon  which  to  recommend  granting  the
relief sought in this application.

      c.  We have noted  the  applicant's  requests  for  reimbursement  for
legal fees and personal expenses he has incurred.  The law under which  this
Board operates authorizes the payment  of  monies  due  as  a  result  of  a
correction  of  the  record  to  rectify  an  error  and/or  an   injustice.
Therefore, favorable consideration of this request  would  not  be  possible
under any circumstances.

4.  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 24 Oct 00, under the provisions of AFI 36-2603:

      Ms. Patricia D. Vestal, Panel Chair
      Ms. Barbara J. White-Olson, Member
      Mr. Daniel F. Wenker, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Jul 00, w/Atchs.
    Exhibit B.  Applicant's Master Personnel Records and Inspector
                General Correspondence (Withdrawn).
    Exhibit C.  Letter, AFPC/DPPPR, dated 2 Aug 00, w/Atchs.
    Exhibit D.  Letter, AFPC/DPPPA, dated 9 Aug 00, w/Atchs.
    Exhibit E.  Letter, SAF/MIBR, dated 25 Aug 00.
    Exhibit F.  Counsel's Letter, dated 20 Sep 00, w/Atchs.




                                   PATRICIA D. VESTAL
                                   Acting Panel Chair