RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-02371
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His nomination for promotion  to  the  grade  of  colonel,  Air  Force
Reserve, be submitted to the Senate for confirmation, or the Propriety
of Promotion process be followed to remove the nomination.
________________________________________________________________

APPLICANT CONTENDS THAT:

He was notified of his selection for promotion to the grade of colonel
in Dec 00.  On 16 Jul 01, he was  informed  that  his  nomination  was
returned  without  action.   The  reason  given  was   that   informal
coordination with the Senate revealed they would take no action on the
nomination if  it  was  submitted.   The  injustice  was  the  records
reflected that he was selected for promotion to the grade of  colonel.
His nomination has not been submitted for confirmation.   Neither  has
the Propriety of Promotion process been used to deny his promotion.

In  support  of  his  appeal,  the  applicant  provided  documentation
regarding assignments to the Air Force Reserve colonel positions.

Applicant's complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Available military personnel records indicate that the  applicant  was
appointed a second lieutenant, Air Force Reserve, on 4 May 72.

By Reserve Order BA-2285, dated 2 Mar 94, the applicant  was  selected
for promotion to the grade of colonel, with an effective date of 1 Apr
94.

On 2 Nov 99, on behalf of the Secretary of  the  Defense,  the  Deputy
Secretary of Defense recommended that  the  President  of  the  United
States remove the applicant's name from the Fiscal  Year  1999  (FY99)
Air Force Reserve Line Colonel  Selection  List.   The  applicant  had
exhibited indicators of leadership deficiencies in the 1989-1991  time
frame.  A 1993  Air  Force  Reserve  investigation  substantiated  the
following allegations of unprofessional conduct:   he  conspired  with
his subordinates to import alcoholic beverages to Saudi Arabia; he did
not provide for the safety of his people in combat in that  he  denied
them access to a protective bunker while under hostile fire;  and,  he
allowed personnel to check out Air Force weapons from a  storage  area
for unauthorized use.

On 14 Dec 99, the President of the United States approved the  removal
of the applicant's name from the FY99 Air Force Reserve  Line  Colonel
Selection List.

By letter, dated 9 Apr 01, the Committee  on  Armed  Services,  United
States Senate, indicated that they had received information concerning
the nomination  of  the  applicant  for  promotion  to  colonel.   The
information revealed that, on at least two occasions,  the  Air  Force
Inspector  General  (IG)  investigated  the  applicant  for  acts   of
misconduct during his service in Saudi Arabia during Operation  Desert
Storm and for irregularities in his officer efficiency  reports.   The
Committee requested that copies  of  the  IG  reports  and  any  other
potentially  adverse  information  pertaining  to  the  applicant   be
provided for their  review.   In  addition,  the  Committee  requested
confirmation whether the efficiency report recommended as a result  of
the second investigation was in the applicant’s official  record  that
was considered by the promotion board.

By letter, dated 23 Aug 01, the applicant’s nomination for appointment
in the grade of colonel was returned from  the  Senate  to  the  White
House without action.

Applicant was relieved from his assignment, assigned  to  the  Retired
Reserve Section, and his name was placed on the Reserve  Retired  List
effective 21 Aug 02 (Eligible for Retired  Pay  Under  10  USC  12731,
Except for Attainment of Age 60).  He was credited with  36  years  of
satisfactory Federal Service for retirement.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letter prepared by the appropriate office of the  Air
Force.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPB recommended denial noting that the applicant  was  considered
and selected for promotion by the  FY93,  FY94,  and  FY99  Air  Force
Reserve Colonel Promotion  Selection  Boards.   In  each  instance,  a
Propriety of Promotion action was completed and the  applicant’s  name
was removed from the promotion list.  He was not selected by the  FY00
Air Force Reserve Colonel Promotion Selection Board.

According to ARPC/DPB, the applicant was considered and  selected  for
promotion to the grade of  colonel  by  the  FY01  Air  Force  Reserve
Colonel Promotion Selection Board.  The selection list was approved by
the President and submitted to the Senate for the required advice  and
consent to promote the named officers to  the  grade  of  colonel.   A
letter, dated 9 Apr 01, from  the  Senate  Armed  Services  Committee,
requested additional information concerning the applicant.  On 23  Aug
01, the names of several officers were returned by the Senate  to  the
White House without action.  The  applicant’s  name  was  among  those
names returned without action.  Once the names of  the  officers  were
released by the White House, they would proceed back down the chain to
the Secretary of the Air Force for any further action.

ARPC/DPB indicated that the Senate has failed to confirm the  name  of
the applicant for promotion  to  the  grade  of  colonel.   Under  the
Standing Rules of the Senate, nominations not acted upon by the  107th
Congress at the time of recess are returned.  By returning  his  name,
the Senate has effectively withheld confirmation of the  applicant  to
assume the higher grade.   Without  Senate  confirmation,  no  Reserve
officer promoted to the grade of colonel or above may hold the  higher
grade.

A complete copy of the ARPC/DPB evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 6 Sep
02 for review and response.  As of this date,  no  response  has  been
received by this office (Exhibit D).

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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  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.   However,  we  do  not   find   the   applicant’s   assertions
sufficiently persuasive to override the rationale provided by the  Air
Force office  of  primary  responsibility  (OPR).   A  review  of  the
available evidence reveals that although the  applicant  was  selected
for promotion to the grade of colonel by the FY01  Air  Force  Reserve
Colonel Promotion Selection Board,  the  Senate  essentially  withheld
confirmation of the applicant to assume the higher grade by  returning
his  nomination  without  action.   We  note   that   without   Senate
confirmation, no Reserve officer promoted to the grade of  colonel  or
above may hold the higher grade.  Furthermore, no  evidence  has  been
presented which would lead us to believe  that  were  the  applicant’s
nomination resubmitted, it would be confirmed by the Senate.  In  view
of the foregoing, and in the absence of  sufficient  evidence  to  the
contrary, we agree with the recommendation of the OPR and adopt  their
rationale as the basis for our decision that the applicant has  failed
to sustain his burden of establishing that he has suffered  either  an
error or an injustice.  Accordingly, we find no  compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

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 AFBCMR Docket Number 02-
02371 in Executive Session on 25 Feb 03, under the provisions  of  AFI
36-2603:

      Mr. Gregory Petkoff, Panel Chair
      Mr. Billy C. Baxter, Member
      Ms. Dorothy P. Loeb, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jul 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPB, dated 27 Aug 02.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Sep 02.




                                   GREGORY PETKOFF
                                   Panel Chair