RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01218
            INDEX NUMBER:  131.00
      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The referral Officer Performance Report (OPR) rendered on him for  the
period 26 Jun 00 to 22 Feb 01 be voided and removed from his records.

The OPR rendered on him for the period 23 Feb 01 through 22 Feb 02  be
included in his Officer Selection Record (OSR)  for  the  fiscal  year
(FY) 2003 Line and Health  Professions  Lieutenant  Colonel  Selection
Board.

The Letter of Reprimand (LOR) he received dated 9 Feb  01  be  removed
from his OSR.

He  be  promoted  to  the  grade  of  lieutenant  colonel  or  in  the
alternative be considered  for  promotion  to  lieutenant  colonel  by
special selection board (SSB) for the FY03 Line and Health Professions
Lieutenant Colonel  Selection  Board  with  his  record  corrected  as
indicated above.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His personnel file was  incomplete  for  two  promotion  boards.   The
letter of rebuttal that he wrote to the referral OPR was not  included
in his personnel file and the OPR rendered on him closing  22  Feb  02
was not included in his OSR for the FY03 Line and  Health  Professions
Lieutenant Colonel Selection Board, which convened in Jun 02.

He was involved in an incident where  he  and  eight  others  did  not
return to duty until approximately one-half hour before the end of the
workday after they had been released for lunch.  He  accepts  that  he
should have been punished, but does  not  believe  that  the  incident
should have ended his career.

He was the only major (O-4) out of four involved in the  incident  who
was given a referral OPR and LOR.

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

_________________________________________________________________
STATEMENT OF FACTS:

The applicant’s Total Federal Commissioned Service Date is 12 Jun  82.
He served on active duty in  the  Air  Force  until  28  Aug  98.   He
transferred to the Air Force Reserves on 29 Aug 98  in  the  grade  of
major.  On 9 Feb 01, the applicant was issued a  Letter  of  Reprimand
(LOR) for inappropriate conduct, consisting of remaining at a  Hooters
Restaurant for over four hours  during  the  Unit  Training  Assembly,
during which time he and other officers drank excessively,  were  loud
and disorderly, openly and repeatedly used, or  allowed  other  junior
officers to use, profane language in a  public  establishment  in  the
presence of other patrons, including minor  children,  and  created  a
disturbance that resulted  in  complaints  by  other  patrons  in  the
restaurant.  On  16 Feb 01, the  applicant  acknowledged  receipt  and
understanding of the LOR and indicated  that  he  did  not  intend  to
submit a response to it.  On  16  Feb  01,  the  applicant’s  squadron
commander notified him that his senior rater would decide if  the  LOR
would be filed in his Officer Selection Record (OSR) and of his  right
to submit matters within three duty  days  for  the  senior  rater  to
consider.  The applicant acknowledged receipt and  indicated  that  he
intended to submit a response, but waived his right to three duty days
to respond.  On 20 Feb 01, the senior rater decided to file the LOR in
the applicant’s OSR.

A resume of the applicant’s OPRs in the Reserves follows:

      Closeout Date               Overall Rating

        25 Jun 99                 Meets Standards
        25 Jun 00                 Meets Standards
       *22 Feb 01                 Does Not Meet Standards
        22 Feb 02                 Meets Standards
        22 Feb 03                 Meets Standards

*  Contested Referral OPR

The Referral OPR closing out 22 Feb 01 was referred to  the  applicant
on  29  May  01.   The  applicant  indicated  that  he  would   submit
documentation in response to the Referral OPR within     30 days.  The
applicant’s response is undated.  The Referral OPR was  filed  in  the
applicant’s OSR on 23 Jul 01.  On 11 Mar 03,  the  Evaluation  Reports
Appeal Board (ERAB) denied the applicant’s appeal to void the report.

The applicant  was  considered  and  not  selected  for  promotion  to
lieutenant colonel by the FY02 Line and Health Professions  Lieutenant
Colonel Selection Board, which convened in Jun 01,  and  by  the  FY03
board, which convened in Jun 02.  The applicant  received  a  “Do  Not
Promote This Board” promotion recommendation for the  FY02  Board  and
the LOR he received was included in his OSR.  The Referral OPR was not
included in his OSR for the FY02  board.   The  applicant  received  a
“Definitely Promote” promotion recommendation for the FY03 Board.  The
LOR and Referral OPR were included in his  OSR.   However  it  is  not
clear as to the date the applicant’s response to the Referral OPR  was
included in the file.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPB recommends denial of the applicant’s request  to  remove  the
Referral OPR from his record.  They also indicate that the applicant’s
rating chain could have requested that the LOR  be  removed  from  his
record anytime after the FY02 promotion  board.   They  indicate  that
they will award the applicant an SSB in lieu  of  the  FY03  promotion
board based on the OPR closing 22 Feb 02 not  being  included  in  his
file and also based on the missing rebuttal to the Referral  OPR.   If
the applicant is not selected for promotion, he will be separated.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, the  applicant  indicates
that he takes full responsibility for his actions and  regrets  making
one bad decision.  He believes that his infraction was  minor  and  he
was unfairly punished.  Other members of equal grade were not punished
and will meet their boards with clean records.  The applicant provides
much of the same  information  that  he  included  with  his  original
application.  He has amended  his  request  to  ask  for  supplemental
promotion consideration  with  a  clean  record  vice  being  directly
promoted.  The applicant indicates that he is aware  that  there  have
been no illegal actions in the administration  of  the  punishment  he
received.  However, he feels a gross injustice has been done and  that
he did nothing to warrant individual punishment of this severity while
others received none.

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 timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  The applicant failed to  provide
sufficient evidence  to  support  his  contention  that  the  LOR  and
Referral  OPR  he  received  were  unfair  and  disproportionate  when
compared to that received by the other  officers  of  the  same  grade
involved in the incident in question.  The applicant’s arguments would
have been more compelling had he provided support  or  an  explanation
from  his  rating  chain  or  independent  corroboration  such  as  an
Inspector General (IG) report.  The Board notes  that  ARPC  indicates
that they will award the applicant a special selection board  for  the
FY03 Line and Health Professions Lt Colonel Selection Board due to his
records not containing the OPR rendered on him closing 22 Feb  02  and
his rebuttal to the  Referral  OPR  closing  22  Feb  01.   While  the
applicant’s promotion opportunity may be questionable with the LOR and
Referral OPR still included in his  OSR,  based  on  the  evidence  of
record, we do not find the actions of his commander, albeit harsh,  to
be arbitrary or capricious.  As such the Board finds no basis to grant
the applicant any further relief than that determined  appropriate  by
HQ ARPC.

_______________________________________________________________

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  BC-2003-
01218 in Executive Session on 4 September 2003, under  the  provisions
of AFI 36-2603:

      Ms. Patricia D. Vestal, Panel Chair
      Ms. Nancy Wells Drury, Member
      Mr. Robert H. Altman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/DPB, dated 12 May 03.
    Exhibit D.  Letter, SAF/MRBR, dated 23 May 03.
    Exhibit E.  Letter, Applicant, dated 24 Jun 03.




                                   PATRICIA D. VESTAL
                                   Panel Chair