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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