RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01972
                            (CASE 3)

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonselection for promotion to the grade of major by  the  Calendar
Year 2003B (CY03B) Major Central Selection Board be set aside.

By amendment, he be directly promoted to the grade of major.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was considered by the CY03B board with errors in his  records  that
should have been removed as a result of the correction of his  records
by the Air Force Board for Correction of  Military  Records  (AFBCMR).
He believes a clear injustice has been done and  he  deserves  a  fair
opportunity for consideration for promotion by a selection board as an
in-the-promotion zone (IPZ) candidate.

In support of his appeal, the applicant provided a personal  statement
and documentation pertaining to the correction of his records.

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

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
the applicant is currently serving on active  duty  in  the  grade  of
captain, having been promoted to that grade on 11 Aug 99.   His  Total
Active Federal Military Service Date (TAFMSD) is 16 Sep 85.

On 14 Mar 02, the Board considered applicant’s request that an Article
15 imposed on 23 Sep 98 be set aside and removed from his records, and
his OPR closing 15 Mar 99  be  amended.   The  Board  recommended  the
Article 15 and OPR be removed from his records, which was accepted  by
the Director, Air Force Review Boards Agency.

Applicant's Officer Performance Report (OPR) profile follows:

      PERIOD ENDING    EVALUATION

      28 Aug 96  Meets Standards
      15 Mar 97  Meets Standards
      15 Mar 98  Meets Standards
      15 Mar 99                 Removed by Order of Chief of Staff
      15 Mar 00  Meets Standards
       1 Feb 01  Meets Standards
       1 Feb 02  Meets Standards
  #    1 Feb 03  Meets Standards

# Top Report at  the  time  he  was  considered  and  nonselected  for
promotion to the grade of major by the CY03B Major Board.

On 24 May 04, the applicant was considered for promotion to the  grade
of major by a Special Selection Board (SSB) for the CY03B Major Board;
however, the results are still pending.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO recommended  denial  noting  the  AFBCMR  had  directed  an
Article 15 and referral OPR be removed from the  applicant’s  records.
They further noted the applicant was considered  by  the  CY03B  Major
Board with those documents in  his  officer  selection  record  (OSR).
They stated they were unable to determine  why  those  documents  were
still a matter of record.

According to AFPC/DPPPO, on 24 May 04, the  applicant  was  considered
for promotion to the grade of major by an SSB without  the  Article 15
and  referral  OPR  in  his  OSR.   Therefore,  he  has  had  a   fair
consideration for promotion.  They do not believe the removal  of  the
nonselection would serve any purpose, as the applicant’s date of  rank
(DOR) would still make him  appear    above-the-promotion  zone  (APZ)
when he is considered by the CY04 Major Board.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  response
indicating he does not believe he has been  given  fair  consideration
even though he was granted an SSB. In his view, he has  been  unfairly
considered for promotion by both the CY03B Major  Board  and  the  SSB
because his superiors have been exposed to his false records for  five
years which has undoubtedly shed negative light  upon  him.   He  asks
that the Board set aside his nonselection and directly promote him  to
major, especially since his DOR will make him appear  APZ.   With  his
APZ status, he does not believe he will ever be treated equally.

Applicant’s complete response, with attachments, is at Exhibit E.

By  letter,  dated  5  Aug  04,  the  applicant  provided   additional
documentary evidence for the Board’s consideration, which is  attached
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.  The applicant's complete submission was  thoroughly  reviewed  and
his contentions were duly noted.  The applicant's complete  submission
was thoroughly reviewed and his contentions were duly noted.  However,
the majority of the Board does 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 as a result of a  previous  appeal  to
the Board, an Article 15 and an OPR were  removed  from  his  records.
Notwithstanding the correction  of  his  records,  the  applicant  was
considered for promotion to the grade of major with those documents in
his OSR.   He  was  not  selected  for  promotion.   However,  he  was
subsequently granted an SSB  without  the  documents  in  his  record.
Therefore, the majority is of the opinion he  was  afforded  fair  and
equitable consideration by a duly constituted SSB.   The  majority  is
aware of a recent court decision wherein the  court  ruled  procedures
established by the Air Force allow the  SSBs  to  make  a  “reasonable
determination as to whether the officers would have been  selected  if
the pertinent records  had  been  properly  considered  by  the  board
unfettered by  material  error.   Further,  the  majority  notes  that
officers compete for promotion under the whole person concept  whereby
many factors are carefully assessed by selection boards.   An  officer
may be qualified for promotion but, in the  judgment  of  a  selection
board vested with the discretionary authority to make the  selections,
may not be the best qualified  of  those  available  for  the  limited
number of promotion vacancies.  In view of the foregoing, and  in  the
absence of sufficient evidence to the contrary,  the  majority  agrees
with the recommendation of the OPR and adopt their  rationale  as  the
basis for their decision the  applicant  has  failed  to  sustain  his
burden  of  establishing  he  has  suffered  either  an  error  or  an
injustice.  Accordingly, the majority finds  no  compelling  basis  to
recommend granting the relief sought in this application.

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.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-01972 in Executive Session on 4 Aug 04 and 18 Aug 04,  under  the
provisions of AFI 36-2603:

      Mr. Joseph A. Roj, Panel Chair
      Mr. Michael J. Novel, Member
      Mr. Clarence D. Long III, Member

By a majority vote, the Board voted to deny the application.  Mr. Long
voted to grant the appeal to promote the applicant but did not  desire
to submit a minority report.  The following documentary  evidence  was
considered:

    Exhibit A.  DD Form 149, dated 17 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 1 Jul 04.
    Exhibit D.  Letter, SAF/MRBR, dated 9 Jul 04.
    Exhibit E.  Letter, applicant, dated 14 Jul 04, w/atchs.
    Exhibit F.  Letter, applicant, dated 5 Aug 04, w/atch.




                                   JOSEPH A. ROJ
                                   Panel Chair


AFBCMR BC-2004-01972






MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT, SSAN

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.





                                           JOE G. LINEBERGER
                                           Director
                                           Air Force Review Boards
Agency