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AF | BCMR | CY2004 | BC-2004-02880
Original file (BC-2004-02880.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-02880

      XXXXXXX    COUNSEL:  BARRY P. STEINBERG

      XXXXXXX    HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered for the  period  17 July  1991
through 16 July 1992, be included in his Officer Selection Record (OSR)  for
the 21 September 2004 Special Board convened pursuant to the court  approved
settlement in Berkley v. Unites States.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

Counsel states that applicant is a class member of a pending  litigation  in
the United States Court of Federal Claims.  As a result of  the  settlement,
applicant’s record will be reconsidered as it appeared before  the  original
Fiscal  Year  1993  (FY93)  Reduction-in-Force  (RIF)   board.    Prior   to
applicant’s consideration, the  report  should  be  placed  in  his  record.
Applicant’s record as it met the FY93 RIF board contained only one OPR as  a
captain.  The absence of the report will mean that for a  period  in  excess
of one year prior to the board’s consideration, he will have  no  evaluation
of his performance.  The  report  reflects  increased  responsibilities  and
strong recommendations as to his career potential.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving in the Air Force  Reserve  in  the  grade  of
major.

Applicant was considered and not selected for retention in the Air Force  by
the FY93 RIF board which convened on 20 July 1992.

Applicant is to be reconsidered for retention  by  the  Calendar  Year  2004
Special  Board  on  21 September  2004,  pursuant  to  the   court   ordered
settlement in Berkley v. Unites States.  The court order agreement  provides
individuals the right to request corrections to their  records  pursuant  to
existing procedures.

Applicant’s complete OPR profile  prior  to  the  FY93  RIF  board  reflects
overall assessments of “Meets Standards.”

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial of applicant’s request  and  states,  in  part,
that although the report closed out prior to the convening of the  FY93  RIF
board, the reviewer did not finalize it until 31 August 1992.  Further,  the
rater and additional rater took no action to complete his  assessment  until
after the Board convened.

The AFPC/DPPPO evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Counsel states that denying the requested relief will preclude  the  Special
Board from making a fully informed  decision  with  respect  to  applicant’s
performance and potential, and to do so would  be  fundamentally  unfair  to
applicant.  Further, applicant is  not  at  fault  for  the  timing  of  the
report.  The fact the record was incomplete at  the  time  of  the  original
board  is  not  an  excuse  to  perpetuate  the  incomplete   record.    The
opportunity to correct the record exists and the AFBCMR is  fully  empowered
to do so.

Counsel complete response 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.  After thoroughly  reviewing  the  evidence
of record and noting counsel’s contention, we are  not  persuaded  applicant
has been the victim of  an  error  or  injustice.   Although  the  contested
report closed out prior to the convening of the FY93 RIF board,  the  rating
officials did not complete their assessment until after the board  convened.
  Counsel  contends  the  report  should  have  been  in  applicant  Officer
Selection Record (OSR) for the FY93 RIF board; however, he has not  provided
any statements from the rating officials indicating it was their  intention,
or what action they took, to have the report finalized  prior  to  the  FY93
RIF board.  Absent  substantive  evidence  that  the  rating  chain  made  a
concered effor to have to report in question finalized before  the  original
RIF board, but were precluded from doing so because of  factors  over  which
they had no control, we find no basis to  treat  the  applicant  differently
from those officers  similarly  situated.   As  an  aside  and  contrary  to
counsel’s assertion, at the time of applicant’s consideration  by  FY93  RIF
board, he had two reports rendered as a captain, not one.  In  view  of  the
fact that the contested OPR was not required to be a  matter  of  record  at
the time the FY93 RIF  board  convened,  we  find  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.

_________________________________________________________________

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-2004-02880
in Executive Session on 20 September 2004, under the provisions of  AFI  36-
2603:

                       Mr. Charles E. Bennett, Panel Chair
                       Mr. Edward H. Parker, Member
                       Mr. Christopher D. Carey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 13 Sep 04.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Sep 04.
    Exhibit E.  Email, Counsel, dated 15 Sep 04.




                                   CHARLES E. BENNETT
                                   Panel Chair

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