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AF | BCMR | CY2002 | 0200789
Original file (0200789.DOC) Auto-classification: Approved

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-00789
            INDEX CODE:  114.01
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Officer Performance Report  (OPR)  rendered  for  the  period  4 Sep  96
through 3 Sep 97, be declared void and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Comments in the OPR are derogatory in nature  and  imply/refer  to  behavior
not  meeting  minimum  acceptable  standards  of  personal  or  professional
conduct, character, judgment, or integrity.  His rater's  comment  regarding
his short notice departure/reassignment to ARPC  implies  or  suggests  some
improper action on his part.  Further the rater's comment  that  "He  should
focus on the interest of the  wing  and  not  being  so  obvious  about  his
disappointment when things do not appear to go his way",  is  derogatory  in
nature and implies that his conduct, character, and/or  judgment  failed  to
meet  acceptable  standards.   The  additional  rater's  comment  "Increased
levels of responsibility not warranted at this time" is clearly the type  of
non-specific/vague  comment  regarding  behavior  of  performance,   without
supporting explanation, that is prohibited by AFI 36-2406.   The  additional
rater's  comment  constitutes  an  implied  promotion   statement   and   is
therefore, prohibited.  The OPR should  have  been  treated  as  a  referral
report and he should have been given a chance to comment  on  it  before  it
became a matter of record.

In support of his request, applicant provided a copy of the  contested  OPR.
His complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Data extracted from the personnel data system reflects  that  the  applicant
was appointed a first lieutenant, Reserve of the Air Force  on  10  Mar  80.
He was progressively promoted to the grade of  major,  having  assumed  that
grade effective and with a  date  of  rank  of  10  Mar  94.   Applicant  is
currently a Non-Participating Reservist assigned  to  the  Individual  Ready
Reserve.

The following is a resume of his recent OPR profile:

            PERIOD ENDING         OVERALL EVALUATION

                 03 Sep 93              MEET STANDARDS
                 03 Sep 94                   (MS)
                 03 Sep 95                   (MS)
                 03 Sep 96                   (MS)
                 03 Sep 97*                  (MS)

* - Contested Report

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPB reviewed applicant's request and  recommends  denial.   DPB  states
that the OPR does not meet the requirements for a referral report in  effect
when the report was rendered.  It was  not  considered  referral  in  nature
when rendered, so the procedures for  notification  and  rebuttal  were  not
required.  The DPB evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that AFI 36-2402 was clearly  designed  to  prevent  raters
from avoiding referral report procedures by rating the  performance  factors
of the OPR as "meets standards" while  including  contradictory,  derogatory
remarks in the narrative portions  of  the  OPR.   The  rater's  comment  is
clearly derogatory in nature and suggests that this conduct, character,  and
judgment failed to meet minimum standards.  The additional  rater's  comment
is  an  unambiguous,  albeit  vague,  statement  that   his   behavior   was
incompatible with standards of personal or professional conduct,  character,
or integrity.

The applicant's complete submission is at Exhibit E.

_________________________________________________________________

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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice.  After reviewing the available evidence  of
record, we are inclined to believe that the  OPR  in  question  should  have
been deemed referral in nature and  that  the  applicant  should  have  been
afforded the opportunity to provide comments on his  own  behalf.   In  this
respect, the OPR in question contains comments that in our opinion refer  to
behavior that  is  incompatible  with  standards  of  professional  conduct,
character, or integrity.   Accordingly  we  believe  that  reasonable  doubt
exists as to the appropriateness of the decision not to  refer  the  OPR  to
the applicant.  It is our opinion that  because  of  the  magnitude  of  the
effect the OPR has on the applicant's  career,  any  doubt  in  this  matter
should be resolved  in  his  favor.   Accordingly,  we  recommend  that  his
records be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that the Field Grade  Officer  Performance
Report, AF Form 707A, rendered for the period  4 September  1996  through  3
September 1997, be declared void and removed from his records.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  02-00789  in
Executive Session on 27 Jun 02, under the provisions of AFI 36-2603:

      Mr. Albert F. Lowas, Jr., Panel Chair
      Mr. Laurence M. Groner, Member
      Ms. Kathleen M. Graham, Member

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

     Exhibit A.  DD Form 149, dated 1 Mar 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ARPC/DPB, dated 12 Apr 02.
     Exhibit D.  Letter, SAF/MRBR, dated 26 Apr 02.
     Exhibit E.  Letter, Applicant, dated 6 May 02.




                                  ALBERT F. LOWAS, JR.
                                  Panel Chair

AFBCMR 02-00789




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 APPLICANT, be corrected to show that the Field Grade Officer
Performance Report, AF Form 707A, rendered for the period 4 September 1996
through 3 September 1997, be, and hereby is, declared void and removed from
his records.







  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency

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