RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 99-03330
                 111.01  111.05  131.05
      XXXXXXXXXXX      COUNSEL: Gary M. Myers

      XXXXXXXXXXX      HEARING DESIRED: Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Reports (OPRs) closing 25 Mar 96 and 25 Mar 97
be voided and replaced with reaccomplished reports covering  the  same
periods, and that he be given consideration by Special Selection Board
(SSB) for the Calendar Year 1998B (CY98B) and CY99A Lieutenant Colonel
(LTC) Selection Boards.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Neither of the reports provided a recommendation  for  Senior  Service
School (SSS).  A unique wing  policy  dictated  that  no  professional
military education (PME) recommendation  would  be  made  until  lower
level PME  work  had  been  completed.  The  applicant  had  completed
Intermediate Service School (ISS) but was awaiting results; therefore,
wing policy precluded an SSS recommendation.  Another  member  of  the
wing received an SSS recommendation even though the circumstances were
identical to his own.  This unique policy was  applied  inconsistently
and denied him equal protection for promotion purposes.  There was  no
statutory/regulatory predication  for  this  policy.   The  Evaluation
Reports Appeal Board (ERAB) decision to deny the appeal was  wrong  on
several levels.

Included  in  his  submittal  are  supporting  statements   from   the
evaluators of the contested OPRs.  An  LTC  in  the  applicant’s  wing
asserts in his statement that he received recommendations for  SSS  on
his 1996, 1997, and 1998 OPRs.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the  grade  of  major  (date  of
rank: 1 Aug 94).

He was considered but not selected for LTC by the CY98B  (1  Jun  98),
CY99A (19 Apr 99) and CY99B (30 Nov 99) promotion  boards.   The  OPRs
closing 25 Mar 98, 19 Jan 99 and 1 Sep  99  have  recommendations  for
SSS.

Similar appeals were filed under the provisions  of  AFI  36-2401  and
denied by the ERAB on 12 Feb and 1 Oct 99.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Appeals & SSB Branch, HQ AFPC/DPPA,  reviewed  this  appeal
and provided her rationale for recommending denial.  The  Chief  noted
the additional rater (wing commander)  did  not  confirm  it  was  his
policy not to  include  an  SSS  recommendation  until  ISS  had  been
completed; he indicated the recommendations were  not  included  as  a
result of administrative error.  The evaluators have not explained why
the new information now included in the reaccomplished versions of the
contested OPRs was not  available  when  the  reports  were  initially
rendered.

A copy of the complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel was erroneously advised by SAF/MIBR on  11 Feb
00 that the Air  Force  was  recommending  approval.   To  afford  the
applicant and his counsel an opportunity to provide  rebuttal  remarks
to the  evaluation’s  recommendation  for  denial,  the  advisory  was
forwarded under cover letter to counsel on 8 May 00 for review.

Counsel responded, claiming the evaluation did not address in any form
the applicant’s principal legal argument  that  he  was  denied  equal
protection of law by the creation of localized OPR standards.  Counsel
provides a statement from an individual who sat on the CY99B LTC board
confirming that the omission of the PME recommendation had a  negative
impact on the applicant. Counsel further asserts that  the  evaluation
erred in stating that the rater closed out the OPR before  the  course
was completed. The course was  completed;  the  applicant  was  merely
awaiting  test  results.  If  the  alternative   OPRs   require   some
adjustment, that can be  done  after  the  principal  issue  of  equal
protection has been resolved.

Counsel’s complete response, with attachment, 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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. After a thorough  review
of the evidence of record and the applicant’s submission,  a  majority
of the  Board  is  not  persuaded  that  he  should  be  afforded  SSB
consideration with  the  reaccomplished  OPRs  in  his  records.   The
supporting statements were  noted,  as  was  the  applicant’s  primary
contention that a unique wing  policy  regarding  PME  recommendations
denied him equal  protection  for  promotion  purposes.  However,  the
available evidence has not persuaded the majority of  the  Board  that
such a policy did, in fact exist, that the  applicant  was  harmed  by
this policy, or that the lack of  SSS  recommendations  was  the  sole
cause of his nonselection promotion. The HQ AFPC/DPPPA advisory points
out that even if the cited policy existed at the applicant’s  wing  it
was not illegal as raters are advised to consider all  factors  of  an
officer’s    accomplishments    (PME    included)    when    rendering
recommendations. We note the OPR closing 25 Mar 98, rendered when  the
applicant occupied the same  position  as  he  did  in  the  contested
reports, included  SSS  recommendations.  Two  subsequent  OPRs  at  a
different assignment  also  contained  SSS  recommendations.   Despite
their  inclusion,  the  applicant  was  not  selected  for  promotion.
Finally, he has not made clear  to  the  Board  majority  why  changes
outside of the requested SSS recommendations were made to the OPRs  or
why this information was not included when the reports were  initially
rendered. Since the applicant  has  failed  to  demonstrate  that  the
contested OPRs were either inaccurate or unjust, the majority  of  the
Board finds no compelling basis upon which to recommend  granting  the
relief sought.

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  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 13 July 2000, under the  provisions  of  AFI  36-
2603:

                  Mr. Vaughn E. Schlunz, Panel Chair
                  Ms. Dorothy P. Loeb, Member
                  Mr. Charles E. Williams Jr., Member

By a majority vote, the Board recommended denial of  the  application.
Mr. Williams voted to grant the requested relief, but he does not wish
to submit a Minority Report. The following  documentary  evidence  was
considered:

   Exhibit A.  DD Form 149, dated 22 Dec 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ APFC/DPPPA, dated 28 Jan 00.
   Exhibit D.  Letter, SAF/MIBR dated 11 Feb 00.
   Exhibit E.  Letter, AFBCMR, dated 8 May 00.
   Exhibit F.  Letter, Counsel, dated 12 Jun 00, w/atch.




                                  VAUGHN E. SCHLUNZ
                                  Panel Chair



AFBCMR  99-03330



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                        FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXX

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                                   JOE G. LINEBERGER
                                                   Director
                                                   Air Force Review
Boards Agency