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


IN THE MATTER OF:      DOCKET NUMBER:  96-02277

            COUNSEL:  GARY R. MYERS

            HEARING DESIRED:  NO



RESUME OF CASE:

On 22 May 1991, the Board favorably considered applicant’s request that  the
Officer Effectiveness Report (OER) rendered  for  the  period  1  June  1985
through 31 May 1986 be declared void and  removed  from  his  records.   The
Board further recommended that he be considered  for  promotion  by  Special
Selection Board (SSB) for the Calendar Year 1988  (CY88)  and  CY89  Central
Major Boards and that he be allowed  60  days  to  secure  a  new  Promotion
Recommendation Form (PRF) from the senior rater for the CY89  Central  Major
Board.

The applicant was selected for retroactive promotion by  SSB  for  the  CY88
Central Major Board.  As a result of his  selection  for  promotion  to  the
grade of major,  the  Board  further  recommended  approval  of  applicant’s
request to be reinstated to active duty.

The applicant was reinstated to active  duty  on  25 October  1992,  in  the
grade of major, with a date or rank (DOR) of 1 October 1989.

On 22 April 1993, the Board favorably considered  applicant’s  request  that
he be considered for Intermediate Service School (ISS) candidacy, under  the
coupled system, by the SSB for the CY88  Central  Major  Board.   The  Board
further recommended that if he was identified as an ISS candidate, a  letter
be placed in his records indicating that he was selected for ISS but  unable
to attend based on operational reasons.

On 15 November 1993, the SSB convened and determined  that  applicant  would
not have been selected for ISS candidacy by the original board.

The applicant was considered and not selected for promotion to the grade  of
lieutenant colonel by the CY93A and CY94A Lt Col boards.

In an application, dated 5 August 1996, the  applicant  requested  promotion
to the grade of lieutenant colonel, correction of the OSB for the  CY93A  Lt
Col Board to reflect additional awards and an additional  duty  title,  that
the Officer Performance Report (OPR) closing  12  August  1993,  be  removed
from  his  records   and   substituted   with   a   reaccomplished   report;
consideration for promotion by Special Selection Board (SSB) if  retroactive
promotion was denied; set aside of his nonselections for  promotion  to  the
grade of lieutenant  colonel,  upgrade  of  his  Performance  Recommendation
Forms (PRFs) for the CY93A and CY94A Lt Col Boards  to  reflect  “Definitely
Promote,” and reinstatement to  active  duty  with  continuous  active  duty
until he can be considered by selection boards conducted  according  to  the
requirements of statute and directive.

On 22 June  1999,  the  Board  considered  applicant’s  requests  and  found
insufficient relevant evidence of an  error  or  injustice  and  denied  the
application.  A complete copy of the Record of Proceedings  is  attached  at
Exhibits A through H.

In a letter, dated 11 January 2000, the applicant’s  counsel  requested  the
applicant’s date of rank (DOR) to major be changed to 24  October  1992  and
he be promoted to the grade of lieutenant colonel with  DOR  of  24  October
1996.  Counsel contends  the  Board’s  delay  to  process  applicant’s  1990
submission, deprived the applicant of an opportunity to serve  in  the  rank
of major on active  duty  for  a  period  of  time  necessary  to  make  him
competitive  with  his  peers,  thereby,  assuring  his   nonselection   for
promotion to the grade of lieutenant colonel.   From  12 April  1990  to  24
October 1992, the applicant did not actually  serve  on  active  duty  as  a
major and there were no Officer Performance Reports (OPRs) for this  period.
 At the time  applicant  was  considered  for  promotion  to  the  grade  of
lieutenant colonel by the Calendar Year 1993A (CY93A)  Board,  he  had  only
one OPR rendered as a  major and only two for the  CY94A  board,  while  his
contemporaries had five to six OPRs.  Counsel’s  complete  submission,  with
attachments, is at Exhibit I.


AIR FORCE EVALUATIONS:

The  Chief,  Promotion,  Evaluation  and  Recognition  Division,  AFPC/DPPP,
reviewed the application and states that they believe the Board has  already
addressed applicant’s request for direct  promotion,  as  indicated  in  the
Record of Proceedings, dated 22 June 1999.   Since  the  applicant  has  not
presented any newly discovered relevant evidence,  they  believe  the  issue
regarding direct promotion consideration has  already  been  considered  and
does not warrant further consideration.   The  applicant  was  provided  due
process when he was retroactively selected for promotion  to  the  grade  of
major by the CY88 board and given a DOR commensurate with  that  board.   He
has provided no substantiation  to  change  his  DOR,  other  than  his  own
opinion.  Nor is there a basis to change a DOR simply to  improve  promotion
opportunity to the next higher grade.

AFPC/DPPP states that each promotion-eligible  officer  is  advised  of  the
entitlement to communicate  with  the  board  president  in  writing.   They
verified the applicant wrote a letter to the CY93A Lt  Col  Board;  however,
they cannot attest to the contents  of  the  letter  because  the  applicant
requested the letter be returned at the close of the board.   The  applicant
could/may have notified the board of the circumstances surrounding  the  gap
in service; at least the opportunity to do so was available.   In  addition,
the applicant also had the opportunity to  attach  any  civilian  employment
performance reports to the letter.

A complete copy of the evaluation is at Exhibit J.

The Staff Judge Advocate, AFPC/JA, reviewed the application and states  that
by regulation, the only basis upon which an application can be  reconsidered
is if, and when, the applicant submits newly  discovered  relevant  evidence
that was not available when the application was previously  considered.   In
this case, the applicant has offered no new evidence whatsoever; rather,  he
has provided only an argument to the effect that the alleged delays  by  the
Board in acting on his applications have denied him  certain  benefits.   In
their opinion, such an argument is not new evidence.  Even  on  the  merits,
applicant has failed to  prove  any  error  or  injustice.  Therefore,  they
recommend the request for  reconsideration  be  denied  on  the  basis  that
applicant   has   failed   to   meet   the   regulatory   prerequisite   for
reconsideration.  If the Board declines to act  on  this  basis,  then  they
would nevertheless recommend the application be denied on the merits as  the
applicant has failed to prove any error or injustice warranting relief.

A complete copy of the evaluation is at Exhibit K.


APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel reviewed the  evaluations  and  states  that  a  new
argument that is substantive and was not  previously  raised  by  a  pro  se
submission, is as a matter of equity, new evidence for purposes  of  review.
In addition, it is not unreasonable for  the  Board  to  examine  itself  to
determine if its own conduct has  caused  harm  which  should  be  remedied.
While changing the applicant’s DOR is extraordinary relief, it is  the  only
relief that will make the applicant whole.   Contrary  to  the  evaluations,
they are trying to  create  promotion  opportunity  where  there  was  none,
rather than improve promotion opportunity.

Counsel’s complete response is at Exhibit M.





THE BOARD CONCLUDES THAT:

Insufficient  relevant  evidence  has  been  presented  to  demonstrate  the
existence of probable error or injustice.  After  thoroughly  reviewing  the
evidence of record and the additional documentation submitted by  applicant,
we are not persuaded that applicant has been  the  victim  of  an  error  or
injustice.  The applicant’s counsel contends the Board failed  to  discharge
its statutory responsibilities by taking two years to decide the first  case
and four years to decide the second.  We  disagree.   In  this  respect,  we
note that applicant’s first application was decided by the Board  less  than
one year from the date he filed his application.  Furthermore,  although  it
took three years for the Board to consider his second application,  we  find
no evidence that this prejudiced the  applicant  in  anyway,  especially  in
light of the fact that the Board did not recommend  favorable  consideration
of the request.  The  corrective  action  for  which  counsel  now  contends
placed the applicant at a disadvantage, is the same action  granted  by  the
Board which resulted in his promotion to the  grade  of  major.   The  Board
recognizes that officers retroactively promoted as a result  of  corrections
to their records and  SSB  consideration  are  almost  always  placed  in  a
situation where they will  have  less  time  than  their  contemporaries  to
establish a record in the grade to which they were  retroactively  promoted.
In the applicant’s case, however, he did have the opportunity  to  establish
a record as a  major  prior  to  his  first  in  the  promotion  zone  (IPZ)
consideration.  At the time of his IPZ consideration he had two  performance
reports as a major  in  his  records.   In  view  of  this,  and  since  the
applicant did write a letter to the CY93 board that considered him  IPZ,  we
are not persuaded that he was denied fair and  equitable  consideration  for
promotion to the grade of  lieutenant  colonel.   Furthermore,  we  find  no
evidence the applicant was  treated  any  differently  than  other  officers
similarly  situated.   Therefore,  in  the  absence  of  evidence  that  the
applicant has been  the  victim  of  an  error  or  injustice,  we  find  no
compelling  basis  to  recommend  granting  the  relief   sought   in   this
application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the additional  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 November 2000, under the provisions of AFI 36-2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Mr. Joseph g. Diamond, Member
                  Mr. Timothy A. Beyland, Member

The following documentary evidence was considered:

      Exhibits A - H.  Record of Proceedings, dated 19 Aug 99,
                      w/atchs.
      Exhibit I.  Letter, Counsel, dated 11 Jan 00, w/atchs.
      Exhibit J.  Letter, AFPC/DPPP, dated 8 Aug 00.
      Exhibit K.  Letter, AFPC/JA, dated 16 Aug 00.
      Exhibit L.  Letter, SAF/MIBR, dated 25 Aug 00.
      Exhibit M.  Letter, Counsel, dated 25 Sep 00.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair