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

IN THE MATTER OF:                       DOCKET NUMBER:  BC-1997-01068
                                             INDEX CODE:  100.00
      XXXXXXX                     COUNSEL:  GARY R. MYERS

      XXXXXXX                           HEARING DESIRED:  NO



MANDATORY CASE COMPLETION DATE:  8 NOVEMBER 2006


________________________________________________________________

APPLICANT REQUESTS THAT:

He be considered for promotion to the grade of major by a Special  Selection
Board (SSB) for the Calendar Year  1993  (CY93)  and  CY94  Major  Selection
Boards.

________________________________________________________________

APPLICANT CONTENDS THAT:

He should be considered by another SSB since the SSB  failed  to  provide  a
rationale for not selecting him for promotion.

Applicant’s counsel cites Homer v. Roche and Miller v. Roche  as  the  basis
for granting the requested relief on the premise that the SSBs  that  failed
to promote the applicant failed to provide their  rationale  for  doing  so.
Counsel holds that the cited court cases stand for the  proposition  that  a
supplemental board must provide a rationale  for  its  decision.   Since  no
rationale was provided in the applicant’s case,  the  SSB  proceedings  were
defective.

Counsel’s complete submission, with attachments, is at Exhibit J.

________________________________________________________________

STATEMENT OF FACTS:

On 21  June  2000,  the  Board  considered  applicant’s  requests  that  his
nonselections for promotion to the grade of  major  for  the  Calendar  Year
(CY) 1993 and 1994  Major  Selection  Boards  be  declared  void;  that  the
Promotion Recommendation Forms (PRFs) prepared for the CY93 and  CY94  major
boards be amended to reflect  “Definitely  Promote”  in  Block  IX,  Overall
Recommendation; and, that he be  promoted  to  the  grade  of  major  as  if
selected by the CY93 major board.  The Board found  sufficient  evidence  to
warrant providing the applicant consideration for promotion to the grade  of
major by an SSB for the CY93  and  CY94  boards  with  the  administratively
corrected Company Grade Officer Performance Report, rendered for the  period
1 August 1990 through 31 March  1991,  reflecting  the  Duty  Title  “Chief,
CFE/CSBM Verification Branch” and PME recommendations in Sections VI  (Rater
Overall Assessment) and VII (Additional Rater Overall  Assessment)  included
in his records.  However, the Board found no basis upon which  to  recommend
favorable consideration of his request to amend the PRF and promote  him  to
the grade of major through  the  correction  of  records  process.   For  an
accounting of the facts and circumstances surrounding the  application,  and
the rationale of the earlier decision  by  the  Board,  see  the  Record  of
Proceedings at Exhibit I.

On 22 January 2001, the  applicant  was  considered  and  not  selected  for
promotion by SSBs for the CY93 and CY94 Central Major Selection Boards.

On 11 April  2005,  the  applicant’s  counsel  requested  the  applicant  be
considered by another SSB since the SSB that considered  him  for  promotion
failed to provide a rationale for not selecting him.

Counsel’s complete submission, with attachments, is at Exhibit J.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends the applicant’s request for SSB consideration  be  denied
and states, in part, that the cited cases do not invalidate the  results  of
his previous SSBs.  To the contrary, the Air Force’s SSB  procedures  comply
with the requirements of the statutes and Federal Circuit  Court  case  law.
While counsel suggests a detailed explanation is required by the SSB  as  to
why it did not select a consideree, in  Richey  v.  United  States,  the  US
Court of Appeals for the Federal Circuit stated that an SSB is not  required
to furnish anything more than the board report  and  certification  required
by statute.  The court noted, quoting from its decision in Porter v.  United
States, that “…if an officer meets an SSB unsuccessfully and can point to  a
material flaw  in  the  SSB’s  procedures  arguably  undermining  the  SSB’s
nonselection judgment, he may petition the Corrections  Board  to  alter  or
void the SSB’s decision.”  In the applicant’s  case,  he  has  submitted  no
evidence to overcome the presumption of  regularity  that  attaches  to  all
administrative decisions.

The AFPC/JA evaluation is at Exhibit L.

________________________________________________________________



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was forwarded to the  applicant’s  counsel
on 18 July 2005, for review and response within 30  days.   However,  as  of
this date, no response has been received by this office.

________________________________________________________________

THE BOARD CONCLUDES THAT:

After thoroughly  reviewing  the  additional  documentation  that  has  been
submitted in support of applicant's appeal and  noting  the  contentions  of
the applicant’s counsel, a majority  of  the  Board  does  not  believe  the
applicant has suffered from an error or  injustice.   The  comments  of  the
Senior Attorney-Advisor are supported  by  the  evidence  of  record  and  a
majority  of  the  Board  adopts  his  rationale  as  the  basis  for  their
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  Therefore, a majority of the Board finds no basis upon which  to
favorably consider this application.

________________________________________________________________

RECOMMENDATION OF THE BOARD:

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

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-1997-01068
in Executive Session on 2 November 2005, under the  provisions  of  AFI  36-
2603:

                       Mr. John B. Hennessey, Panel Chair
                       Mr. Joseph D. Yount, Member
                       Ms. Jean A. Reynolds, Member

By majority vote, the Board recommended  denial  of  the  application.   Mr.
Yount recused himself, without prejudice, due  to  prior  knowledge  of  the
applicant.  The following documentary evidence was considered:

   Exhibit I.  Record of Proceedings, dated 24 Aug 00, w/atchs.
   Exhibit J.  Letter, Counsel, dated 11 Apr 05, w/atchs.
   Exhibit K.  Letter, AFBCMR, dated 5 May 05.






   Exhibit L.  AFPC/JA, dated 16 May 05.
   Exhibit M.  Letter, AFBCMR, dated 18 Jul 05.




                                   JOHN B. HENNESSEY
                                   Panel Chair



AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB MD 20762-7002

XXXXXX

      After careful consideration of your request for reconsideration of
your application for correction of military records, AFBCMR Docket Number
BC-1997-01068, the majority of the Board determined that the evidence you
presented did not demonstrate the existence of material error or injustice.
 The Secretary's designee accepted the recommendation of the majority and
denied your application.

      You have the right to submit newly discovered relevant evidence for
consideration by the Board.   In the absence of such additional evidence, a
further review of your application is not possible.

      BY DIRECTION OF THE PANEL CHAIR




                                        MACK M. BURTON
                                        Executive Director
                                        Air Force Board for Correction
                                        of Military Records

Attachment:
Addendum to Record of Board Proceedings



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

SUBJECT:  AFBCMR Application of XXXXXXX, XXXXXXX

      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