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


IN THE MATTER OF:      DOCKET NUMBER:  BC-2001-00121
            INDEX CODE:  111.01
            COUNSEL:  Mr. Grant Lattin

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Officer Performance Report (OPR) rendered for the period of  18  Dec
95 through 17 Dec 96, be removed from his records.

2.  He be considered  for  promotion  to  the  grade  of  major  by  Special
Selection Board (SSB) for the Calendar  Year  2002A  (CY02A)  Major  Central
Selection Board.

_________________________________________________________________

STATEMENT OF FACTS:

On 6 Jul 01, the Board considered and denied a similar request submitted  by
the applicant.  Applicant contended that the OPR makes reference to  charges
that do not exist since all charges were dismissed and he was released  from
all penalties resulting from the offense.  For an accounting  of  the  facts
and  circumstances  surrounding  the  applicant’s   separation,   and,   the
rationale  of  the  earlier  decision  by  the  Board,  see  the  Record  of
Proceedings at Exhibit E.

On 16 May 03, counsel provided copies of several prior  AFBCMR  cases  which
he believes are similar to the applicant's case in which the  Board  granted
the applicant's request.  Counsel concedes that a  conviction  did  in  fact
occur, but that conviction has now been dismissed and as  it  exists  today,
the applicant's records are inaccurate.  Counsel  states  that  the  factual
error also violates the Privacy Act and can be corrected  pursuant  to  that
statute.

In support of  his  request,  applicant  provided  his  counsel's  brief,  a
statement from the applicant's previous  supervisor,  copies  of  previously
submitted documentation, and copies of  previous  AFBCMR  case  files.   His
complete submission, with attachments, is at Exhibit F.

_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s request, the USAF/JAA reviewed the applicant’s  most
recent   submission   and   recommends   the   request   be   rejected   for
reconsideration because the applicant failed  to  provide  newly  discovered
relevant evidence.  JAA states that OPRs, like other performance  evaluation
documents,  were  purposely  designed  to   evaluate   an   officer's   duty
performance and corresponding mission impact  during  a  defined  period  of
time.  At the time,  the  rater's  overall  assessment,  including  comments
related  to  his  criminal  conviction,  were  factually  correct   and   in
compliance with regulatory requirements.  Therefore, there is  no  error  or
injustice requiring Board correction.  JAA states that all three cases  that
the applicant believes are  similar  have  certain  common,  distinguishable
facts  from  the  applicant's  case.   All  three  were  enlisted  and   the
corrections pertained to promotion actions.  Officers are held to  a  higher
professional standard than  enlisted  members.   What  would  be  considered
excusable conduct for an airman would be intolerable for  an  officer.   Two
of the three cases involving promotions involved civilian court cases  which
were eventually overturned on appeal and dismissed.  The statement  provided
by the applicant's rater demonstrates a  complete  misunderstanding  of  the
criminal court process.  The governing  North  Dakota  statute  makes  clear
that in order to  qualify  for  deferred  adjudication,  a  person  must  be
convicted of an offense.

There are limitations placed on the applicant's ability to bring suit  under
the Privacy Act.  The applicant must demonstrate that the alleged  offending
OPR comment had an adverse effect.  Second, to state a claim under the  Act,
the plaintiff must also allege  a  counsel  connection  between  the  agency
violation and the  adverse  effect.   While  the  counsel  alleges  the  OPR
comment  negatively  impacted  the  applicant's  promotion  opportunity,  he
offers no evidence establishing either limitation.

The JAA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that he has provided an additional letter from the  rater  of
the OPR in  question  which  states  that  if  he  had  known  the  criminal
conviction would be  dismissed  he  would  have  never  recorded  it  in  so
permanent a place as a performance report.  Counsel states  that  of  course
the three cases are factually different.  No two cases are  the  same.   The
other cases were provided because each involves a conviction of one sort  or
another, and the conviction was later changed.   Based  upon  the  facts  in
each case, the AFBCMR determined that  an  injustice  and/or  an  error  had
occurred and records correction was appropriate.  The same is applicable  to
this  case.   the  enlisted  officer  distinction  is  not  appropriate   to
correction of records containing factual errors.

Retaining an OPR that refers to a civilian conviction that no longer  exists
violates  the  above  provisions  because  such  information  is  no  longer
accurate, relevant, timely, or  complete,  and  such  erroneous  information
certainly does not assure fairness to the individual.  The advisory  ignores
the fact that this same OPR is reviewed by subsequent promotion boards,  and
those boards will surely assume that the applicant  stands  convicted  of  a
crime.

In support of his request applicant  provided  statements  from  his  former
rater,  his  commander  at   the   time   of   his   in-the-zone   promotion
consideration, and his  wing  commander.   His  complete,  submission,  with
attachments, is at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  After again reviewing this application  and  the  evidence  provided  in
support of the appeal, we remain unpersuaded that the contested  OPR  should
be removed from his records and SSB  consideration  is  warranted.   In  his
most recent submission, the applicant provided copies of AFBCMR  case  files
that  he  believes  contain  similar  circumstances  and  states  that   the
conviction has been dismissed and  as  it  exists  today,  his  records  are
inaccurate.  We disagree.  We thoroughly reviewed the evidence presented  in
support of his appeal;  however,  we  do  not  find  his  or  his  counsel's
assertions sufficiently persuasive to override  the  rationale  provided  by
the  Office  of  the  Judge  Advocate  General.   We  do  not  believe   the
circumstances of the previous AFBCMR decisions are similar nor  do  we  find
the decisions and rationale of the decisions of the  panel  members  binding
in  this  particular  case.   It  remains  our  opinion  that  the  comments
contained in the contested OPR were factually appropriate and in  compliance
with policy that  existed  at  the  time.   Therefore,  in  the  absence  of
persuasive evidence to  the  contrary,  we  find  no  basis  upon  which  to
recommend granting the relief sought in this application.

2.  Notwithstanding the above, we note that  the  there  appears  to  be  an
error with regards to the accuracy of the Rater's comment in the  last  line
of Section VI of the OPR.  We agree with the recommendation  of  the  Office
of the Judge Advocate General and believe that  the  appropriate  corrective
action in this case would be to remove the last  ten  words  from  the  last
line in Section VI.  Since this correction  does  not  change  the  referral
nature of the  OPR,  it  is  our  opinion  that  making  the  aforementioned
correction does not warrant consideration for promotion by SSB.   Therefore,
we recommend that his records be corrected as 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  AF  Form  707B,  Company  Grade
Officer Performance  Report,  rendered  for  the  period  18  December  1995
through  17  December  1996,  be  amended  in  Section VI,  Raters   Overall
Assessment, by deleting the words "and convicted by  a  civilian  court  for
the second case."

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2001-
00121 in Executive Session on 11 Dec 03, under the  provisions  of  AFI  36-
2603:

      Mr. Albert F. Lowas, Jr., Panel Chair
      Mr. Grover L. Dunn, Member
      Mr. John E. Pettit, Member

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

    Exhibit E.  Record of Proceedings, dated 6 Jul 01, w/atchs.
    Exhibit F.  Letter, Counsel, dated 16 May 03, w/atchs.
    Exhibit G.  Letter, USAF/JAA, dated 26 Jun 03, w/atchs.
    Exhibit H.  Letter, SAF/MRBC, dated 2 Jul 03.
    Exhibit I.  Letter, Counsel, dated 29 Sep 03.




                                             ALBERT F. LOWAS, JR.
                                             Panel Chair

AFBCMR BC-2001-00121




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 AF Form 707B, Company
Grade Officer Performance Report, rendered for the period 18 December 1995
through 17 December 1996, be amended in Section VI, Raters Overall
Assessment, by deleting the words "and convicted by a civilian court for
the second case."






                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency