RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00494
            INDEX NUMBER:  131.00
      XXXXXXXXXXXX     COUNSEL:  Gary Myers

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for  the  period
18 Dec 95 through 13 Dec 96 be removed from his records.

He be considered for promotion to  the  grade  of  major  by  special
selection board (SSB) for the CY02A Central Major Selection Board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Through an eight-page brief of counsel, applicant contends that:

The contested OPR was based on false information regarding  his  off-
duty conduct.

The contested report was, in fact, a referral report and he  was  not
given the opportunity to reply to it.

His rater used the historically derogatory term “Solid” in describing
his performance and the additional rater made a career ending comment
in his indorsement.

Counsel provides the details that led to the  applicant’s  OPR.   The
applicant  was  named  in  an  investigation  as  having  engaged  in
inappropriate conduct,  of  which  he  was  eventually  cleared.   He
provides a statement of apology from the  applicant’s  accuser.   The
applicant was not exonerated until after the  closeout  date  of  the
OPR.

There are no documented counselings regarding applicant’s performance
of  duty.   Copies  of  AF   Forms   8,   “Certificate   of   Aircrew
Qualification,” show that the applicant  received  consistently  high
marks and no discrepancies were noted.  Counsel indicates that he has
spoken to the applicant’s former additional rater who represented  to
him that applicant had been  the  subject  of  multiple  counselings.
However, there is no record of any and the applicant denies that  any
occurred.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active duty  in  the  grade  of
captain.  He was considered and not selected to the grade of major by
the CY02A and CY02B Central Major Selection Boards.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial of the applicant’s request to  void  the
OPR closing 13 Dec 96.   The  applicant  filed  an  appeal  with  the
Evaluation Reports Appeal Board (ERAB).  The ERAB denied his  request
because the statement made by the additional rater  in  Section  VII,
Line 5, of the OPR is not considered referral in nature.   Air  Force
policy is that an evaluation report is accurate as  written  when  it
becomes a matter of record.  There are no errors or injustices  cited
in the 13 Dec 96 OPR.   The  applicant  has  failed  to  provide  any
substantial evidence to support his contentions.

The complete evaluation, with attachment, is at Exhibit C.

AFPC/DPPPO recommends denial of the applicant’s request for promotion
consideration by SSB.  Since  AFPC/DPPPE  recommends  denial  of  the
applicant’s request to remove the OPR closing      13 Dec 96 from his
records, SSB consideration is not warranted.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded to the Air Force evaluation after the case had been
temporarily withdrawn.  Counsel indicates, “It  is  remarkable”  that
anyone could conclude that the language “… has potential to be a good
officer if he can learn to harness and better focus  his  energy”  is
anything other than a negative character  comment.   Counsel  further
asserts that they  have  discovered  that  the  applicant’s  OPR  was
discussed among the additional rater,  wing  commander,  staff  judge
advocate, and another senior officer.  The senior officer  had  taken
the position that the OPR was referral.  Counsel opines that the  OPR
was debated  and  lawyered  to  create  negative,  but  arguably  not
referral language.  Counsel states that the senior officer  disclosed
to the applicant in a phone conversation that the wing commander  had
improperly influenced the outcome of the applicant’s OPR.

Counsel points out that there is no evidence pointing to  applicant’s
substandard duty performance either personally or professionally.  He
provides a summary of  the  applicant’s  accomplishments  during  the
period of the report and otherwise that show the applicant is not and
has never been an average individual.  Finally, he provides a summary
of the problems with the applicant’s OPR:

        a.  Applicant is referred to as “Solid.”

        b.  No mention of leadership is made.

        c.  No mention of service schools is made.

         d.  The  narrative  is  clearly   negative   in   tone   and
implication.

Counsel’s complete response is at Exhibit H.

_________________________________________________________________

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.   We  question  AFPC/DPPPE’s
observation that it is reasonable to conclude that the  applicant  is
at least an “average” officer with  the  potential  to  be  a  “good”
officer.  It might be equally as  reasonable  to  conclude  that  the
“average”  Air  Force  officer  is  a  “good”  officer.   Regardless,
although the majority of the comments in the OPR  are  positive,  the
statement in Section VII, “… has potential to be a good officer if he
can learn to harness and better focus  his  energy,”  sends  a  clear
message that the applicant has deficiencies as an officer.   However,
it is not clear from the OPR what they are, since  he  is  marked  as
meeting standards in every factor in Section V and  the  comments  in
Sections VI and VII do not clearly indicate.  While  it  is  entirely
possible that the applicant is aware of the reasons  the  comment  in
Section VII was made, an OPR written in such a vague manner fails  to
clearly provide those reviewing the OPR in an official capacity, such
as this Board, with a clear picture of the  officer’s  strengths  and
weaknesses.  We believe such an OPR constitutes an  injustice,  since
it negatively impacts the individual, but does not  provide  a  clear
basis for challenge.  Therefore, we recommend  that  the  applicant’s
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  Company  Grade
Officer Performance Report, AF Form 707B,  rendered  for  the  period
18 December 1995 through 13  December  1996,  be  declared  void  and
removed from his records.

It is further recommended that he be considered for promotion to  the
grade of major by the CY02A Central Major Promotion Selection  Board,
and any subsequent boards for which the OPR closing      13  December
1996 was a matter of record.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2003-
00494 in Executive Session on 18 December 2003, under the  provisions
of AFI 36-2603:

      Ms. Carolyn J. Watkins-Taylor, Panel Chair
      Ms. Martha J. Evans, Member
      Mr. Roscoe Hinton, Member

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

     Exhibit A.  DD Form 149, dated 6 Feb 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPPE, dated 24 Mar 03.
     Exhibit D.  Memorandum, AFPC/DPPPO, dated 3 Apr 03.
     Exhibit E.  Letter, SAF/MRBR, dated 11 Apr 03.
     Exhibit F.  Memorandum, Applicant’s Counsel,
                 dated 8 May 03.
     Exhibit G.  Letter, AFBCMR, dated 8 May 03.
     Exhibit H.  Memorandum, Applicant’s Counsel,
                 dated 24 Jun 03.
     Exhibit I.  Memorandum, Applicant’s Counsel,
                 dated 2 Jul 03.
     Exhibit J.  Fax Cover Sheet, Applicant’s Counsel,
                 dated 24 Nov 03.




                                   CAROLYN J. WATKINS-TAYLOR
                                   Panel Chair


AFBCMR BC-2003-00494


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 XXXXXXXXXXXX, XXX-XX-XXXX, be corrected to show
that the Company Grade Officer Performance Report, AF Form 707B,
rendered for the period 18 December 1995 through 13 December 1996,
be, and hereby is, declared void and removed from his records.

      It is further directed that he be considered for promotion to
the grade of major by the CY02A Central Major Promotion Selection
Board, and any subsequent boards for which the OPR closing 13
December 1996 was a matter of record.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency