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


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01510-2

      XXXXXXX    COUNSEL:  None

            HEARING DESIRED: Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period 5  Feb
99 through 4 Feb 00 be declared void and removed from his records.

He be considered by special selection board (SSB)  for  promotion  to  the
grade of lieutenant  colonel  by  the  CY00A  Central  Lieutenant  Colonel
Selection Board and any subsequent boards as applicable.

__________________________________________________________________

RESUME OF CASE:

On 3 Oct 05, the Board reconsidered its 1 Sep 04 denial of the applicant’s
requests as stated above (Exhibit I).  In  a  letter,  dated  14  Mar  06,
applicant’s counsel requests further reconsideration  of  the  applicant’s
stated requests.  In support of their current  request,  counsel  provides
what they opine is concrete proof the applicant was required a  change  of
reporting (CRO) official OPR, which would invalidate the contested  report
because it included a period of time the applicant could  not  and  should
not have been rated by the rater on the contested report (Exhibit J).

__________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFPC/DPPPE  reevaluated  the  applicant’s
case based on the newly submitted evidence.  They again  recommend  denial
of the applicant’s requests.

AFPC/DPPPE states that it is not completely true that the contested report
is invalid because it represents a rating of time and events not  part  of
the rating period properly ascribable  to  the  rater  of  record  on  the
contested report.  They note that the rater can only document  information
he was aware of and that the information is not inaccurate because of  the
dates  on  the  report.   Correcting  the  dates  on  the  report  is   an
administrative correction authorized by AFI 36-2401.   AFPC/DPPPE  further
notes that it appears the applicant believes a rater can only  complete  a
report for the time period he/she actually rated on a member.   AFPC/DPPPE
illustrates how this is not always  the  case  when  preparing  a  report.
Specifically, they indicate that the days of  supervision  do  not  always
conform to the period of the report.

AFPC/DPPPE states that since the letter provided by the applicant’s  rater
prior to the contested report did not give a specific date he departed for
his next assignment, they cannot determine when or whether  a  CRO  report
was required.

The complete additional evaluation is at Exhibit K.

__________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

Applicant’s counsel responded  to  the  additional  advisory  opinion  and
states that  AFPC/DPPPE  totally  misrepresents  he  and  the  applicant’s
position.  They take the view that the previous rater should have “done  a
CRO.”   Counsel  notes  that  the  previous  rater  was  the   applicant’s
supervisor for more than 120 days (5 Feb 99 to Jul  99.   Counsel  further
points out that AFPC/DPPPE suggests that this period  was  only  117  days
when it, in fact, amounted to 146 days.  Counsel states that there  is  no
way the 120 day requirement to do a report was not met and states that the
contested  OPR  should  be  expunged  and  the  applicant  considered  for
promotion by SSB.

Counsel’s complete response is at Exhibit M.

__________________________________________________________________

SECOND ADDITIONAL AIR FORCE EVALUATION:

Based on the applicant’s counsel’s response to the  additional  evaluation
and pursuant  to  the  Board’s  request,  AFPC/DPPPEP  provided  a  second
additional evaluation to correct  the  previous  evaluation.   They  still
recommend denial of the applicant’s requests.

AFPC/DPPPEP notes that they miscalculated the number of  days  supervision
the previous rater would have had from 5 Feb 99 to    1 Jul 9.  They  also
concur that a CRO should have been accomplished.  However, they note  that
a report was not accomplished and the applicant did not provide  a  report
to be filed in his records.  Therefore, AFPC/DPPPEP states an AF  Form  77
should be filed in the applicant’s record and indicate that  a  report  is
not available for the period 5 Feb 99-1 Jul 99.

AFPC/DPPPEP next addresses the applicant’s contention the contested report
contains information from outside the reporting period.  They  state  that
the applicant’s belief that only information occurring during  the  period
should be documented is not entirely correct.  They note that AFI 36-2402,
paragraph 1.4.17 states, “Do not include events  that  occurred  before  a
performance report unless it adds significantly to the  evaluation  report
and has not been previously reported.”  They  opine  that  information  on
events occurring between 5 Feb 99 and 1  Jul  99  can  be  placed  on  the
contested report because it had never been documented or considered  on  a
previous report and added significant information to the applicant’s OPR.

The complete evaluation is at Exhibit N.

__________________________________________________________________

APPLICANT’S REVIEW OF SECOND ADDITIONAL EVALUATION:

Applicant’s  counsel  responded  to  the  second  additional   evaluation.
Counsel states that there is now agreement between the Air Force Office of
Primary Responsibility, he and the applicant that the period from 5 Feb 99
through 1 Jul 99 should be unrated.  The next question is what to do  with
the contested OPR.  Counsel  opines  that  administratively  changing  the
start date of the OPR does not solve the problem  with  the  report.   The
rater’s intention was to treat the report as  a  full  year’s  assessment.
Counsel asks, rhetorically, what part of the OPR is for the period  5  Feb
99 through 1 Jul 99 and was that part “significant” information.   Counsel
states that they do not know and, thus, cannot challenge what they do  not
know.  Counsel further opines neither the previous rater nor the rater  on
the  contested  report  followed  the  regulations  and,  therefore,   the
contested OPR is unreliable.  He states that the applicant should be given
the benefit of the doubt, the OPR voided and an AF Form  77  inserted  for
the period.  The applicant should then be considered for promotion by SSB.

Counsel’s complete response is at Exhibit P.

__________________________________________________________________

THE BOARD CONCLUDES THAT:

After again reviewing the complete evidence of record as well as  the  new
advisories prepared by  AFPC/DPPPE,  a  majority  of  the  Board  believes
sufficient evidence has been presented to show the applicant has  possibly
been the victim of an error or injustice.  In reaching our  decision,  the
Board  majority  notes  some  ambiguity  in  the  advisories  prepared  by
AFPC/DPPPE as to when and what type of performance report should have been
rendered on the applicant.  As such, this has  created  some  doubt  in  a
majority of the Board regarding the correctness of the  contested  report.
The Board majority believes this doubt should be resolved in favor of  the
applicant.  Therefore,  the  Board  majority  recommends  the  applicant’s
records be corrected as indicated below.

__________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating
to APPLICANT, be corrected to show that  the  Officer  Performance  Report
(OPR) rendered on him for the period 5 February 1999  through  4  February
2000 be declared void and removed from his records.

It is further recommended that the  corrected  record  be  considered  for
promotion to the grade of lieutenant colonel by  Special  Selection  Board
(SSB) for the Calendar  Year  2000A  (CY00A)  Lieutenant  Colonel  Central
Selection Board and for any subsequent board for which the OPR  closing  4
February 2000 was a matter of record.

__________________________________________________________________

The following members of the Board reconsidered Docket BC-2004-01510-2  in
Executive Session on 14 September 2006, under the provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. John E.B. Smith, Member
      Ms. Kathy L. Boockholdt, Member

By majority vote, the Board voted to correct the records, as  recommended.
Ms. Boockholdt voted to deny but elected not to submit a minority  report.
The following additional documentary evidence was considered:

    Exhibit I.  Addendum Record of Proceeding, w/atchs,
                dated 17 Oct 05.
    Exhibit J.  Memorandum, Counsel, dated 14 Mar 06, w/atchs.
    Exhibit K.  Memorandum, AFPC/DPPPE, dated 20 Apr 06.
    Exhibit L.  Letter, SAF/MRBR, dated 12 May 06.
    Exhibit M.  Memorandum, Counsel, dated 16 Jun 06.
    Exhibit N.  Memorandum, AFPC/DPPPEP, dated 23 Jun 06.
    Exhibit O.  Letter, AFBCMR, dated 14 Jul 06.
    Exhibit P.  Memorandum, Counsel, dated 14 Aug 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair

AFBCMR BC-2004-01510-2


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of  the  Air  Force
relating to XXXXXXX, XXXXXXX,  be  corrected  to  show  that  the  Officer
Performance Report (OPR) rendered on him for the period  5  February  1999
through 4 February 2000 be, and hereby is, declared void and removed  from
his records.

      It is further directed that the corrected record be
considered for promotion to the grade of lieutenant colonel by
Special Selection Board (SSB) for the Calendar Year 2000A (CY00A)
Lieutenant Colonel Central Selection Board and for any subsequent
board for which the OPR closing 4 February 2000 was a matter of
record.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency