RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: 02-01385

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Field Grade Officer Performance  Report  (OPR),  closing  19 March
1996, be amended in Section VI, Rater Overall Assessment, to include an  in-
residence Professional Military Education (PME)  recommendation,  a  comment
stratifying him amongst his peers, and a job recommendation.

2.    The OPR, closing 19 March 1997,  be  amended  in  Sections  VI,  Rater
Overall  Assessment,  and  VII,  Additional  Rater  Overall  Assessment,  to
include   an   in-residence   Professional    Military    Education    (PME)
recommendation, a comment stratifying him  amongst  his  peers,  and  a  job
recommendation.

3.    The Promotion Recommendation Form  (PRF)  prepared  for  the  Calendar
Year 1999A (CY99A) Non-Line Judge Advocate  General  (JAG)  Central  Colonel
Selection Board, be amended to include a  comment  stratifying  him  amongst
his peers and a job recommendation.

4.    The Officer Selection Brief (OSB) prepared for the CY99A Non-Line  JAG
Central Colonel  Selection  Board,  be  amended  by  changing  the  Academic
Specialty/School section to show that he received a Masters  of  Law  degree
in taxation; by changing the Overseas Duty  History  dates  to  reflect  the
inclusive dates for his tours in Iceland from 17 July 1993 to 16  July  1994
and 17 July 1994 to 15 July 1995; and by removing any reference to  being  a
group-level Staff Judge Advocate (SJA) at --- from 1 July 1995  to  31  July
1995 from the Assignment History section.

5.    His nonselection for promotion to the grade of colonel  by  the  CY99A
Non-Line JAG Central Colonel Selection Board be set aside.

6.    He be retroactively promoted to the grade of colonel, with a  date  of
rank (DOR) as  if  selected  by  the  CY99A  Non-Line  JAG  Central  Colonel
Selection  Board,  or  in  the  alternative,   his   corrected   record   be
reconsidered by the Non-Line JAG Aggregate and Carry-Over  Management  Level
Review (MLR) Board for a Definitely Promote (DP) recommendation  and  he  be
considered for promotion to the grade of  colonel  by  a  Special  Selection
Board (SSB) for the CY99A Non-Line JAG Central Colonel Selection Board.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

Erroneous omissions in the  contested  OPRs  placed  him  at  a  significant
disadvantage in competing for a  DP  recommendation  by  the  Aggregate  and
Carry-Over MLRs as well as for selection  for  promotion  to  the  grade  of
colonel.

Although his rating chain intended for him to be competitive  for  promotion
to the grade of colonel, the  omission  of  key  phrases  (i.e.,  rater  and
additional rater  erroneously  failed  to  include  an  in-residence  Senior
Service  School  (SSS)  recommendation,  the  additional  rater  erroneously
failed to  include  a  stratification  comment  and  a  job  recommendation)
substantially diminished his chances for a DP recommendation  and  promotion
selection.  In addition, the senior rater erroneously failed  to  include  a
stratification comment in the contested PRF.  The failure to  include  these
comments was due to inadequate guidance provided  to  his  rating  officials
who were Naval officers, and was not intended to  send  a  negative  message
concerning his suitability for promotion.

His OSB contained incorrect overseas duty dates for  his  tours  in  Iceland
because they reflect an overlapping period  and  do  not  cover  the  entire
period he served.  The OSB also contains  misleading  information  regarding
his Academic  Specialty/School  and  does  not  alert  the  promotion  board
members to the fact that he earned a Master of Law (LL.M) Degree.   The  Air
Force JAG places great importance on the possession of LL.Ms.  His OSB  also
reflects that he was a Group Staff Judge Advocate in  ---.   While  this  is
true, it is misleading.  In this regard, he notes that his OPR was  prepared
at the Wing level and he completed a Permanent Change of Station (PCS)  only
two weeks after the organization was redesignated as a Group.   An  officer,
not  fully  aware  of  the  redesignation,  reviewing  his  records  at  the
Aggregate and Carry-over MLRs or  at  the  Central  Selection  Board,  could
interpret this entry as meaning he was sent to a  subordinate  legal  office
position within the Wing until he completed his PCS.   The  inclusion  of  a
reference to the --th Group  on  his  OSB  is  administratively  unnecessary
since no other portion of his records makes reference to the --th Group.

In support of the appeal, the applicant submits statements  from  the  rater
and additional rater on the contested reports, a statement from  the  senior
rater on the contested PRF, a reaccomplished PRF, and reaccomplished OPRs.

The rater and additional rater of the contested OPRs  state  that  they  did
not include  SSS  and  job  recommendations  because  they  thought  it  was
inappropriate to do so since these selections were  made  within  the  Judge
Advocate channels and would be ultimately approved by the additional  rater.
 The senior rater of the contested PRF states  that  when  he  prepared  the
contested  PRF  for  submission  to  the   Aggregate   Board   with   a   DP
recommendation, he failed to  include  stratification  comments  and  a  job
recommendation because he was unaware of their importance.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The  applicant  is  currently  serving  on  active  duty  in  the  grade  of
lieutenant colonel.

The applicant was considered and not selected for promotion to the grade  of
colonel by the CY99A, CY01A, and CY01B Central Colonel Selection Boards.

Applicant’s performance profile, since 1992, follows:

       PERIOD ENDING             OVERALL EVALUATION

         19 Mar 92              Meets Standards (MS)
         19 Mar 93                      MS
         19 Mar 94                      MS
         19 Mar 95                      MS
       # 19 Mar 96                      MS
       # 19 Mar 97                      MS
         19 Mar 98                      MS
       * 19 Mar 99                      MS
      ** 19 Mar 00                      MS
     *** 19 Mar 01                      MS

# Contested Reports

* Top report reviewed by the CY99A Col Board
** Top report reviewed by the CY01A Col Board
*** Top report reviewed by the CY01B Col Board

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/JA recommends the application be denied, and states, in part, that  the
applicant has failed to prove any material error requiring  correction.   In
this respect, they note the following:

      a.    The general concepts of including job  and  SSS  recommendations
in  OPRs  has  been  fully  recognized  and   their   importance   generally
acknowledged in all career fields for well over the  last  ten  years.   The
assertions of the applicant and his raters that they  did  not  realize  the
importance of these subjects are not credible.  The rater’s comment in  both
of the contested  OPRs  to  “Challenge  him!”  and  the  additional  rater’s
exhortation that  the  ratee  is  “ready  now  for  greater  responsibility”
clearly  constitute  job  recommendations  (albeit  weak   recommendations).
Furthermore,  the  two  OPRs  preceding  the  contested  OPRs  both  contain
recommendations for a job and SSS, and the two OPRs following the  contested
OPRs contain SJA and SSS recommendations.

      b.    The concept of stratification was  first  briefed  in  the  1997
time frame and was fully included in briefings and DP web  site  information
by 1999.  In the JAG, the concept was being briefed by early 2000.   Because
of that, reports written before 1999 are  not  normally  held  by  promotion
boards to the same  standard  with  respect  to  stratification  as  reports
written in the last three years.  The absence of such a comment on  any  OPR
does not constitute error.

       c.     The  applicant’s  observation  that  the  importance  of   job
recommendations and stratification comments were not known within the  Naval
community, is contradicted by the 1998 and 1999 OPRs  written  by  the  same
Navy senior rater and another Navy rater which both  contain  very  specific
job and SSS recommendations.

The AFPC/JA evaluation is at Exhibit C.

AFPC/DPPPO recommends the application be denied, and states, in  part,  that
officers will not be considered by  an  SSB  if,  in  exercising  reasonable
diligence, the officer should have  discovered  the  error  or  omission  in
his/her records and could have taken timely corrective action.  They do  not
believe the applicant has exercised reasonable diligence and  has  had  more
than ample opportunity to correct the OSB discrepancies.  Since he  has  not
demonstrated reasonable diligence in the maintenance of  his  records,  they
do not support promotion reconsideration.  While the applicant contends  the
Specialty/School area on his OSB is misleading,  AFIT  is  the  only  agency
authorized to update academic data and they have verified the  specialty  to
be correct.  Although it may be argued that  the  errors  on  his  OSB  were
factors in his nonselection for promotion, there is no clear  evidence  that
they negatively impacted his promotion opportunity.

The AFPC/DPPPO evaluation, with attachment, is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states that the authors of the contested  OPRs  and  PRF  were
asked to write in a “code” without being educated on what  language  it  was
based.   Now  realizing  that  he  has  been  harmed,  these  well-respected
officers seek the only appropriate remedy.  AFPC/JA does  not  dispute  that
the absence of the referenced comments are significant  to  promotion  board
deliberations.  Instead, they accuse his rating officials of  lying  on  his
behalf.  While the rater and additional rater state  that  they  were  aware
the instructions did not prohibit such comments, the  instruction  does  not
stress nor highlight their  importance  to  promotion  board  deliberations.
Furthermore, the 1994 and 1995 OPRs referenced as containing such  comments,
were written by line officers.  Although  AFPC/DPPPO  admits  that  his  OSB
contained errors, they  disingenuously  argue  that  these  errors  did  not
contribute to his nonselection for promotion.

The applicant’s complete response 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 error or injustice.  The statements from the  rating  officials
are  duly  noted,  and  we  are  not  questioning  the  integrity  of  these
officials; however, we are not persuaded that the  applicant  has  been  the
victim of an error or injustice.  Although these officials state  that  they
did not include SSS and job recommendations  because  they  thought  it  was
inappropriate to do so since these selections were  made  within  the  Judge
Advocate channels and would be ultimately approved by the additional  rater,
they do not indicate that they treated the applicant  any  differently  than
other officers similarly situated.  To the contrary, the rater  states  that
he did not include these comments in any of the OPRs  he  prepared  for  the
four lieutenant colonels and  one  major  he  rated  during  the  period  in
question.  We  also  do  not  believe  the  applicant  exercised  reasonable
diligence in insuring that his OSB  was  correct.   Applicant’s  contentions
are duly noted; however,  we  do  not  find  these  assertions,  in  and  by
themselves, sufficiently persuasive to override the  rationale  provided  by
the Air Force.   The  offices  of  primary  responsibility  have  adequately
addressed applicant’s contentions and  we  agree  with  their  opinions  and
adopt the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his burden that he has  suffered  either  an
error or an injustice.  Hence, we find  no  compelling  basis  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 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 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  Docket  Number  02-01385  in
Executive Session on 13 February 2003 under the provisions of AFI 36-2603:

                       Mr. Philip Sheuerman, Panel Chair
                       Mr. David A. Mulgrew, Member
                       Ms. Cheryl Jacobson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Apr 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 5 Nov 02.
    Exhibit D.  Letter, AFPC/DPPPO, dated 22 Nov 02, w/atch.
      Exhibit E.  Letter, SAF/MRBR, dated 6 Dec 02.
      Exhibit F.  Letter, Applicant, dated 3 Jan 02.




                                   PHILIP SHEUERMAN
                                   Panel Chair