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


IN THE MATTER OF:      DOCKET NUMBER:  BC-1993-06923

      XXXXXXXXXXXXXX   COUNSEL:  William S. Aramony

      XXX-XX-XXXX      HEARING DESIRED:  Yes

__________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Officer Effectiveness Report (OER) rendered on him for the  period
1 Sep 85 through 9 May 86 be declared void and removed from his records as
well as any and all other documentation relating to this OER.

2.  The OER rendered on him for the period 10 May 86 through     21 Oct 86
be declared void and removed from his records as well as any and all other
documentation relating  to  the  OER;  and,  a  reaccomplished  report  be
substituted in its place.

3.  The Officer Performance Report (OPR) rendered on him for the period 30
Jun 90 through 29  Jun  91  be  changed  in  Sections  VI  (Rater  Overall
Assessment) and VII (Additional Rater Overall Assessment)  as  recommended
by the rater and additional rater.

4.  His nonselection for promotion to the grade of major by  the  Calendar
Year (CY) 1986B Central Major Selection Board be voided and he be given  a
date of rank as if selected for promotion to the grade of  major  by  this
board.

5.  His nonselection for promotion to the grade of lieutenant  colonel  by
the CY92B and CY93A Central Lieutenant Selection Boards be voided.

6.  The Promotion Recommendation Forms (PRFs) rendered on him  and  viewed
by the CY92B and CY93A Central  Lieutenant  Colonel  Selection  Boards  be
voided.

7.  He be directly promoted to the  grade  of  lieutenant  colonel  as  if
selected by the CY91B Central Lieutenant Colonel  Selection  Board,  which
convened on 2 Dec 91.

8.  Correction of his records to show that he was not separated  from  the
Air Force on 31 Aug 94 and retired effective 1 Sep 94 but was continued on
active duty.

9.  If his records are corrected to show that he was continued  on  active
duty, a non-prejudicial statement be placed in his records  to  cover  the
period  from  his  retirement  date  of  1  Sep  94  until  the  date   of
reinstatement.

10.  He be provided any further relief  deemed  necessary  or  appropriate
including, but not limited to, his selection to a  Senior  Service  School
(SSS) or the Defense Systems Management College (DSMC); and payment of all
pay and allowances due as a result of the correction of his records.

The above list constituted the applicant’s requests, as amended, in  a  25
Aug 97 letter to the Board.  Applicant’s counsel in a    31 Oct  03  brief
states that if the applicant is denied direct promotion to  major  by  the
CY86B (Item 4 above) selection board and to  lieutenant  colonel  (Item  7
above) by the CY91B selection board, then all relief as requested above is
made.  Additionally, the applicant requests,  if  not  directly  promoted,
that his records reflect that he had 18 years of  service  and  retirement
sanctuary in 1993.

__________________________________________________________________

RESUME OF CASE:

The  Board  initially  considered  and  denied  by  a  majority  vote  the
applicant’s appeal as untimely on 21 Jul 94 (Exhibit  M).  On      18  Oct
94, a majority of the Board denied a request for reconsideration from  the
applicant  on  the  grounds  that  it  did  not  meet  the  criterion  for
reconsideration of his case.  On 20 May 98,  the  Board  reconsidered  the
applicant’s case based on merit.  The applicant’s case was denied (Exhibit
N).

In 2002, the applicant had his case heard by the United  States  Court  of
Federal Claims.  The applicant and the United States filed a joint  motion
for the case to be remanded to the AFBCMR for review to determine  if  the
applicant’s May 86 OER violated Air Force Regulation 36-10 and, if such  a
violation is found, to take appropriate action.  The Board would have  120
days from the receipt of applicant’s submission to review the case.  On 22
Jan 03, the  United  States  Court  of  Federal  Claims  issued  an  order
remanding the case to the AFBCMR  and  staying  the  proceedings  for  six
months.  On 5 Mar 03, the Board was provided a copy of the order  (Exhibit
O).

On 31 Oct 03, applicant’s counsel submitted a  26-page  brief  of  counsel
requesting reconsideration of the applicant’s appeal and relief on remand.
 In addition to the amended requests as indicated above, counsel discusses
the issues relative to the applicant’s case being remanded by  the  court.
Counsel also discusses the sequence of events he contends led to the  1986
OER in question and  the  applicant’s  subsequent  failure  of  promotion.
Counsel asserts that the additional rater on the applicant’s OER was three
steps higher in the  rating  chain  than  the  applicant  when  AFR  36-10
required that the additional rater should be the rater’s rater,  only  two
steps higher.  Counsel further discusses the findings of the court,  which
he asserts found that the applicant pled a sufficient  nexus  between  the
alleged violation of AFR 36-10 and the alleged adverse effects the May  86
OER had on the applicant’s career.  Counsel opines that the voiding of the
OER is insufficient remedy in the applicant’s  case  and  argues  why  the
applicant should be directly promoted (Exhibit Q).

In a letter, dated 6 Nov 03, applicant’s counsel clarified that  they  are
seeking De novo  consideration  of  the  applicant’s  case  and  not  just
reconsideration as the 31 Oct 03 letter might infer (Exhibit R).

__________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s request AFPC/DPPPE provided an evaluation  of  the
issue of whether the additional  rater  on  the  applicant’s  May  86  OER
violated AFR 36-10.  They opine that AFR 36-10 was not violated  and  cite
pertinent passages of the regulation to justify their position.   Specific
reference is made to AFR 36-10, subparagraph 2-2(a),  which  states,  “The
additional rater may defer to a person  higher  in  the  rating  chain  if
desired, in which case the  person  deferred  to  becomes  the  additional
rater”  and  to  paragraph  3-1d(2),  which  states,  “Specific  reporting
channels are established at all levels of command, particularly  when  the
channels are not clearly identifiable by the organizational  structure  or
when commanders deem it justifiable to  deviate  from  the  organizational
structure for rating purposes.”  Additionally, Immediate Message Change 85-
1 added, “Such deviations should be  considered  only  when  they  clearly
improve the evaluation process consistent with the best interests  of  the
Air Force.”

AFPC/DPPPE concludes that there is nothing to indicate that the individual
that signed the applicant’s OER as additional rater was not, in fact,  not
authorized to do so.

The complete evaluation is at Exhibit S.

__________________________________________________________________

RESPONSE TO AIR FORCE EVALUATION:

Applicant’s counsel responded to- the Air Force evaluation in a  nine-page
brief with exhibits.  Counsel opines that AFPC/DPPPE’s evaluation suggests
legal  error  when  it  opines  that  AFR  36-10  was  not  violated  and,
alternatively, gives an unsupported conclusion  against  direct  promotion
while ignoring the important aspects of the case.  Counsel further asserts
that for the Board to follow AFPC/DPPPE’s  lead  would  be  arbitrary  and
capricious.

Counsel discusses the issue of the additional rater and references an  OER
that shows  that  the  individual  they  assert  should  have  signed  the
applicant’s OER as additional rater clearly was  the  applicant’s  rater’s
rater.  Counsel further discusses AFPC/DPPPE’s reference to the lack of  a
2095 to clearly show who was the additional rater.  Counsel indicates that
a rational connection does not exist between the  AF  Form  2095  and  the
additional rater issue.  According to counsel, AFPC/DPPPE asks  the  Board
for  the  first  time  to  question  the  rater  and/or  additional  rater
identities, proclaiming that it has been too long for  them  to  find  the
2095, but not attesting that they looked in the rater’s  personnel  record
or elsewhere for it.  Counsel opines that the AF Form  2095  represents  a
new Air Force position and that the Air Force is estopped from taking this
different position.  Counsel provides his arguments  in  support  of  this
premise.

Counsel asserts that when  viewed  closely,  the  evaluation  prepared  by
AFPC/DPPPE is unsupported by legal  or  other  reasoning  or  citation  to
regulation or other authority.  Counsel opines that important  aspects  of
relief in the case are not addressed.  Counsel  goes  on  to  discuss  why
direct promotion is the viable form of relief in this case.

Counsel’s complete response, with attachments, is at Exhibit U.

__________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Insufficient relevant evidence has been presented to  demonstrate  the
existence of error or injustice.  Although this case was remanded back  to
the Board to review the applicant’s claim that the OER rendered on him for
the period 1 Sep 85 through 9 May 86 was signed by  the  wrong  additional
rater, applicant’s counsel has asked for  de  novo  consideration  of  the
applicant’s case.   In  weighing  counsel’s  request  and  the  associated
requests for relief, it is our view that our review should  be  guided  by
our determination of the central issue leading to remand of this case.  In
that regard, we do not find any evidence that  the  additional  rater  who
signed the applicant’s OER was  not  authorized  to  do  so.   AFR  36-10,
paragraph 3-1d(2), Immediate Message Change 85-1, did allow commanders  to
establish  reporting  channels  that  deviated  from  the   organizational
structure when such deviations clearly  improved  the  evaluation  process
consistent with the best interests of the Air Force.  While we are lacking
clear evidence of why the normal additional  rater  was  not  the  one  to
endorse the report, based  upon  the  presumption  of  regularity  in  the
conduct of governmental affairs and without evidence to the  contrary,  we
must assume that the OER did not violate  Air  Force  regulations  at  the
time.  Therefore, it is our determination that  the  additional  rater  of
record on the contested report met Air Force requirements.

2.  In considering counsel’s request for de novo consideration, we do  not
find a basis to grant this request.  In our view, the applicant’s case has
been given full and fair consideration and he has not established why a de
novo review is warranted.  Therefore it is our decision that  the  request
for de novo consideration is denied.

3.  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.

____________________________

RECOMMENDATION OF THE BOARD:

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  93-06923  in
Executive Session on 31 March 2004, under the provisions of AFI 36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Mr. Richard A. Peterson, Member
      Mr. James W. Russell, III, Member

The following additional documentary evidence was considered:

    Exhibit M.  ROP, dated 27 Jul 94, w/atchs.
    Exhibit N.  Addendum ROP, dated 25 Jun 98, w/atchs.
    Exhibit O.  US Court of Federal Claims Order,
                dated 22 Jan 03.
    Exhibit P.  Joint Motion for Remand.
    Exhibit Q.  Letter, Counsel, dated 31 Oct 03, w/atchs.
    Exhibit R.  Letter, Counsel, dated 6 Nov 03.
    Exhibit S.  Memorandum, AFPC/DPPPE, dated 7 Jan 04, w/atchs.
    Exhibit T.  Letter, SAF/MRBR, dated 16 Jan 04.
    Exhibit U.  Letter, Counsel, dated 9 Feb 04, w/atchs.




                                             DAVID C. VAN GASBECK
                                             Panel Chair