RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-03117

      XXXXXXX    COUNSEL:  DARTT J. DEMAREE

      XXXXXXX    HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  9 Apr 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Officer Performance Report (OPR) closing 4 April 1995, be  amended
in Section VI, Rater Overall Assessment, by  deleting  the  final  sentence,
“Key asset for  all  of  us-–talented  pen,  focused  reasoning,  principled
approach, leadership-–an officer “for all seasons.”” and replacing  it  with
the sentence, “SJA, SSS in residence soonest for this  superb  JAG!”  or  in
the alternative, the report be removed from his records.

2.    The OPR closing 4 April 1996, be amended in Section VI, Rater  Overall
Assessment, by deleting the final  sentence,  “Give  him  the  toughest  job
available.” and replacing it with the  sentence,  “Must  give  toughest  job
available now:  SJA & SSS.” or in the alternative,  the  report  be  removed
from his records.

3.    The OPR closing 4 April 1997, be amended in Section VI, Rater  Overall
Assessment, by deleting the last sentence, “Wing  Staff  Judge  Advocate  at
first opportunity!”  and  replacing  it  with  the  sentence,  “Staff  Judge
Advocate, SSS at first opportunity!!”

4.    The OPR closing 19 July 1999, be amended in Section VI, Rater  Overall
Assessment, by deleting the  last  sentence,  “Impeccable  officer,  warrior
leader, trusted confidant, boundless energy, ace results, one of the  best!”
and replacing it with the sentence,  “Impeccable  warrior  officer,  already
leads GCM JA office to ace results -  NWC,  MAJCOM  SJA  a  must!!”  and  in
Section VII, Additional Rater  Overall  Assessment,  by  deleting  the  last
sentence, “The absolute pinnacle of his  peer  group-assign  this  superstar
JAG only the  AF’s  toughest  jobs-send  to  SSS.”  and  replacing  it  with
“Pinnacle of peers; send this superstar to  SSS,  make  him  a  MAJCOM  SJA,
assign only AF’s toughest job!”

5.    The OPR closing 9 June 2000, be amended in Section VI,  Rater  Overall
Assessment, by deleting the  last  sentence,  “Absolutely  tops,  best  I’ve
seen,  untiring  leadership  style:   a   must   for   SSS   &   larger   JA
responsibilities!” and replacing it with the sentence “Absolutely tops,  the
best I’ve seen, untiring leadership style; SSS & MAJCOM  SJA  responsibility
a must!!”

6.    The Promotion  Recommendation  Form  (PRF)  prepared  for  the  P0601A
Colonel  Board  be  removed  from  his  records  and   replaced   with   the
reaccomplished PRF he has provided.

7.    He be considered for promotion to the grade of colonel  by  a  Special
Selection Board (SSB) that will use  a  revised  Memorandum  of  Instruction
(MOI) that does not include equal opportunity instructions for the  Calendar
Year 2001 (CY01) Colonel Selection Board.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The 1995 and 1996 OPRs were rendered by a rater who was biased  against  him
because he was displeased with the applicant on at least two occasions  when
his legal reviews upheld substantiated misconduct in Inspector General  (IG)
investigations and because  the  applicant  was  unwilling  to  support  the
rater’s improper standard of review for  senior  officer  misconduct  cases.
Further, the reports leave significant “white space” in Block VI,  which  is
an acknowledged way to signal an officer is not a top performer.

The 1997 OPR was intended to include a recommendation for SSS.   In  support
of this request, applicant submits a statement and reaccomplished  OPR  from
the rater.  The rater states that  he  intended  to  prepare  the  strongest
possible evaluation and neglected to include a recommendation for SSS.   The
rater further states that he is certain he intended to include  it,  because
he would not have recommended him for a Staff Judge Advocate (SJA)  position
if he thought he was  not  worthy  of  senior  level  Professional  Military
Education (PME).

The rating officials of the 1999 and  2000  OPRs  misunderstood  the  policy
concerning PME and future assignment recommendations.   As  a  result,  they
were erroneously omitted from the reports.  The fact  that  such  assignment
recommendations  were   permitted   for   his   contemporaries   means   the
misunderstanding by his raters deprived him of the opportunity  to  play  by
the same rules.  In support of this request, he submits statements from  the
rating officials and reaccomplished reports.  The  rating  official  of  the
1999 OPR states that he  would  have  included  PME  and  future  assignment
recommendations had he known they were permissible.  The rater of  the  2000
OPR has provided a statement indicating  that  he  would  have  included  an
enhanced assignment remark had he known one was permissible.

Had his OPRs been accurate, the P0601A  PRF  would  have  contained  a  much
stronger narrative promotion recommendation.  In  support  of  his  request,
applicant submits a statement from the senior  rater  and  a  reaccomplished
PRF.  The senior rater states that  the  revised  PRF  contains  a  somewhat
enhanced promotion recommendation
  that  is  more  consistent  with  the  revised  OPRs   and   contains   an
administrative correction to his Duty Air Force Specialty Code (DAFSC).


Due to the errors in his OPRs and PRF he was deprived of the opportunity  to
compete fairly for promotion at the time  of  his  primary  opportunity  for
promotion.  Not only should he be provided  SSB  consideration  due  to  the
numerous  errors,  he  should  receive  SSB  consideration  based   on   the
inequitable instructions to the CY01A Board to  afford  fair  and  equitable
consideration to women and minority officers.  The instruction implies  that
such officers have  suffered  from  disadvantage  in  the  past  and  should
receive special consideration by the board.  While it also adds  the  phrase
“as with all  officers”  when  discussing  fair  treatment,  the  undeniable
impact is to call the board members to  be  particularly  sensitive  to  the
promotions  of  minority  and  women  officers.   Both  women  and  minority
officers in-the-promotion zone (IPZ) had a higher promotion rate than  other
officers.  Although there was only one minority officer meeting  the  board,
he was promoted.  More importantly, the promotion rate for  the  nine  white
women meeting the board IPZ was significantly higher  (77%)  than  the  rate
for  white  males  (45%).   The  results  of  the  board  support  that  the
instruction  which  called  attention  to  unspecified  “past  attitudes  or
service utilization policies” gave women and minorities an unfair  advantage
at  the  CY01A  Board.   As  such,  the  instruction  discriminated  against
caucasion males such as the applicant.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving on active duty in  the  grade  of  lieutenant
colonel.

Applicant was considered and not selected for  promotion  to  the  grade  of
colonel by the CY01A, CY02B, and CY03B Colonel Selection Boards.

The Evaluation Report Appeals Board (ERAB) considered and denied  a  similar
request filed on 29 June 2003.

Applicant’s OPR profile since 1995, follows:

           PERIOD ENDING          EVALUATION OF POTENTIAL

                  4 Apr 94             Meets Standards (MS)
                 14 Apr 95                MS
               *  4 Apr 96                MS
               *  4 Apr 97                MS
                  4 Apr 98            MS
                 22 Sep 98                MS
               * 19 Jul 99                MS
               *  9 Jun 00 (CY01A)                   MS
                        9 Jun 01               MS
                        9 Jun 02 (CY02B)                   MS
                        9 Jun 03 (CY03B)                   MS
                        9 Jun 04 (CY04J)                   MS

(CY01A) - Top report reviewed by the CY01A Col Board.
(CY02B) - Top report reviewed by the CY02B Col Board.
(CY03B) - Top report reviewed by the CY03B Col Board.
(CY04J) - Top report reviewed by the CY04J Col Board.

* Contested reports

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPE recommends the application be denied and states, in part, that  a
willingness by evaluators to upgrade, rewrite, or void a  report  is  not  a
valid basis for doing so.  Applicant must  prove  the  report  is  erroneous
based on its content.  Assignment and PME recommendations are  optional  for
reports.  Raters are not forced to make these comments specifically to  help
an officer’s  future  promotion  opportunity.   Although  the  applicant  is
unhappy with the wording and lack  of  recommendation,  it  is  the  rater’s
privilege to place comments  he  or  she  deems  important  on  the  report.
Evaluation reports are considered accurate  as  written  unless  substantial
evidence to the contrary is provided.  Any report can  be  rewritten  to  be
harder hitting; however, the time to do so is prior to it becoming a  matter
of record.  None  of  the  applicant’s  supporters  explain  how  they  were
hindered from rendering a fair and accurate assessment  of  the  applicant’s
performance prior to the  reports  being  made  a  matter  of  record.   The
appeals process does not exist to recreate history or  enhance  chances  for
promotion.

AFPC/DPPPO recommends the application be denied and states,  in  part,  that
since the MOI provided to the  CY01A  Board  members  had  been  changed  to
delete the verbiage in question, the applicant’s claim of discrimination  is
unfounded.

The evaluations are at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The evaluations fail to present contrary evidence and  do  not  address  the
injustice  raised  by  applicant.   Applicant  has  never  claimed  that   a
willingness by evaluators  to  change  his  report  is  the  basis  for  his
request.  His raters have stated that they either failed  to  do  what  they
intended or were mistaken about their  options  when  writing  the  reports.
Given their statements and in view of the ambiguous guidance  in  Air  Force
directives, he has established by a preponderance of the evidence  that  the
reports are in error.  Applicant is not contending the  raters  were  forced
to make PME recommendations, but rather, the raters themselves  have  stated
they  wanted  the  PME  recommendations  corrected.   Further,  the   raters
specifically explain how and why they misunderstood what could  be  properly
written  in  the  OPRs.   They  believed  Air  Force  Instructions  made  it
impermissible to make their desired comments.  Additionally,  the  applicant
is not asserting false statements exist within his OPRs  or  that  they  are
technically wrong.  His OPRs  are  inaccurate  because  they  lack  positive
statements  and  recommendations  that   would   have   appeared   but   for
misunderstandings or bias against him.

Applicant provided the relevant portion of the MOI to the CY01A Board  which
contains  language  drawing  specific  attention  to  minority   and   women
officers.  Applicant has never asserted the  language  in  the  MOI  at  the
CY01A Board was exactly the same language used in the  boards  before  2001,
or that was reviewed in the Berkley case.  While  the  instruction  provided
to the CY01A Board regarding women and minority officers  may  have  changed
from earlier boards, it still gave them  special  attention  and  led  board
members to consider giving them preferential treatment, as evidenced by  the
significantly higher rates of promotion  for  women  and  minority  officers
meeting the CY01A Board, than that of caucasion officers.

Counsel’s complete response, with attachment, 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice to  warrant  amending  the  OPRs  closing  4
April 1997, 19 July 1999, and 9 June 2000,  and  providing  the  applicant’s
corrected record consideration for promotion to the grade of colonel  by  an
SSB for the P0601A Board.  In this respect, we note the rater  of  the  1997
report indicates that he intended to include a  PME  recommendation  in  the
report and  missed  the  omission  while  proof-reading  the  document.   In
addition, the rating officials of the 1999 and 2000 reports  have  indicated
that PME  recommendations  were  erroneously  omitted  from  these  reports.
After reviewing the statements from the rating  officials,  it  appears  the
regulatory guidance may have been ambiguous regarding  authorized  comments.
In the absence of a basis to  question  the  integrity  of  these  officials
concerning this matter, we believe the  applicant  has  met  his  burden  of
establishing the reports are in error or unjust.   Therefore,  we  recommend
the reports be amended to include the PME recommendations  proposed  by  the
rating officials.  In addition, his corrected record  should  be  considered
for promotion to the grade of colonel by an SSB for the  P0601A  Board,  and
for any subsequent boards for which the contested reports were a  matter  of
record.  While the applicant requests these reports  be  declared  void  and
replaced  with  the  reaccomplished  reports  he  has  provided,  since  the
proposed changes only involve the last sentence of Sections VI and  VII,  we
recommend amending the reports to include the proposed comments  as  opposed
to voiding them in their entirety and  replacing  them  with  reaccomplished
reports.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice to warrant favorable  consideration  of  the
remainder of the  applicant’s  requests.   In  this  respect,  we  note  the
following:

      a.    We are not persuaded the 1995 and 1996 reports were rendered  in
reprisal for the applicant’s unwillingness to support the  rater’s  improper
standard of review for senior  officer  misconduct  cases.   The  statements
rendered in the applicant’s behalf regarding these reports are  duly  noted;
however,  they  are  not  from  individuals   within   his   rating   chain.
Furthermore, we find no evidence the applicant ever filed a  complaint  with
the Office of the Inspector General  regarding  alleged  acts  of  reprisal.
Contrary to counsel’s belief, substantial evidence has  not  been  presented
to establish these reports are in error or unjust.  In view  of  the  above,
and in the absence of statements from the rating officials of the  contested
reports, we believe the applicant has failed  to  sustain  his  burden  that
these reports are either in error or unjust.

      b.    Although the senior rater has reaccomplished the P0601A  PRF  to
include changes to Section IV, Promotion Recommendation, and correcting  the
applicant’s DAFSC, the applicant has not obtained the  required  support  of
the MLR President and we are not persuaded the DAFSC is incorrect.  In  this
respect,  we  note  that  in  accordance  with  the  governing   Air   Force
Instruction (AFI) in effect at the time the  PRF  was  rendered,  supporting
documentation from both the senior  rater  and  MLR  president  is  required
prior to correction of Section  IV,  Promotion  Recommendation,  of  a  PRF.
Counsel states that applicant did  not  obtain  the  MLR  president  support
because he did not know his/her identity and  unless  the  Air  Force  makes
such information reasonably available,  it  is  unreasonable  to  deny  this
request because the applicant does  not  have  support  from  someone  whose
identity  is  not  disclosed.   However,  such  information  is   reasonably
available.  In this respect, we note  that  in  providing  instructions  for
requesting  corrections  to  a  PRF,  the  governing  AFI  states  that  the
management level that  initially  processed  the  PRF  can  best  route  PRF
appeals to the appropriate MLR president and that if  the  management  level
no longer exists, AFPC/DPPPAE should be contacted for instructions.  If  the
MLR president is deceased, retired, or after reasonable  efforts  cannot  be
contacted, the current MLR president can act  in  his  or  her  behalf.   In
addition, Military Personnel Flights (MPFs) are  available  to  provide  the
military addresses  of  active  duty  personnel  and  assist  applicants  in
contacting retirees through the Worldwide Locator.  In the  absence  of  MLR
president support, we are not persuaded the  PRF  is  in  error  or  unjust.
Should he obtain MLR president support,  the  Board  would  reconsider  this
portion  of  the  application.   Although  the  senior  rater   states   the
applicant’s DAFSC should be reflected as 51J4 on the PRF, rather than  51J3,
the  “4”  suffix  to  the  DAFSC   relates   to   staff   level   functional
responsibility and is restricted to positions above the wing level.  In  the
applicant’s case, at the time the PRF was prepared he was  assigned  as  the
Staff Judge Advocate, 341st Space Wing, and not  to  a  position  above  the
wing level.  In view of  this,  and  in  the  absence  of  evidence  to  the
contrary, we are not convinced that his DAFSC is incorrectly listed  on  the
contested PRF.

      c.    We are not persuaded the MOI used during the  CY01A  Board  gave
special attention to women and minority eligible officers and find no  basis
upon which to recommend that the applicant receive SSB consideration with  a
revised MOI that does not include equal opportunity instructions.   We  note
that in 1998, the MOI was revised to remove the language cited by the  court
in Berkley and was not  in  use  during  the  CY01A  Board.   The  contested
paragraph of the CY01A  MOI  which  deals  with  equal  opportunity  clearly
states that, “This paragraph should not be interpreted to require or  permit
preferential treatment of any officer or group of  officers.”   In  view  of
this, and in the absence of evidence to the contrary, we are  not  convinced
the  MOI  used  during  the  CY01A  Board  denied  him  fair  and  equitable
consideration for promotion.  While counsel  notes  the  AFBCMR’s  favorable
decision in BC-2003-01438, in which SSB consideration  was  granted  due  to
improper board instructions involving race and gender, no  such  showing  is
present in the applicant’s case.  In  BC-2003-01438,  the  member  had  been
considered for promotion by a selection board that used  the  contested  MOI
cited by the court in Berkley.  In view of this, and  since  the  Air  Force
did not appeal  the  court’s  decision  in  Berkley,  the  AFBCMR  favorably
considered  the  member’s  request  for  SSB  consideration.   However,   as
indicated above, the MOI was revised in 1998 to remove  the  language  cited
by the court  in  Berkley  and  was  not  in  use  when  the  applicant  was
considered for promotion by the CY01A Board.  In view of this,  the  Board’s
recommendation to provide him SSB  consideration  is  based  solely  on  the
recommended corrections to his records and not based  upon  a  finding  that
the CY01A MOI denied him fair and  equitable  consideration  for  promotion.
Moreover, since SSBs are governed by law, the Board is without authority  to
direct the manner in which they are convened.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.    The Field Grade Officer Performance Report (OPR), AF Form  707A,
rendered for the period 5 Apr 1996  through  4 April  1997,  be  amended  in
Section VI, Rater Overall Assessment, by deleting the last  sentence,  “Wing
Staff Judge Advocate at  first  opportunity!”  and  replacing  it  with  the
sentence, “Staff Judge Advocate, SSS at first opportunity!!”

      b.    The OPR, AF Form 707A,  rendered  for  the  period  23 September
1998 through  19  July  1999,  be  amended  in  Section  VI,  Rater  Overall
Assessment, by deleting the  last  sentence,  “Impeccable  officer,  warrior
leader, trusted confidant, boundless energy, ace results, one of the  best!”
and replacing it with the sentence,  “Impeccable  warrior  officer,  already
leads GCM JA office to ace results -  NWC,  MAJCOM  SJA  a  must!!”  and  in
Section VII, Additional Rater  Overall  Assessment,  by  deleting  the  last
sentence, “The absolute pinnacle of his  peer  group-assign  this  superstar
JAG only the AF’s toughest jobs-send to SSS.”  and  replacing  it  with  the
sentence “Pinnacle of peers; send this superstar to SSS, make him  a  MAJCOM
SJA, assign only AF’s toughest job!”

      c.    The OPR, AF Form 707A, rendered  for  the  period  20 July  1999
through 9 June 2000, be amended in Section VI, Rater Overall Assessment,  by
deleting the last sentence,  “Absolutely  tops,  best  I’ve  seen,  untiring
leadership style:  a  must  for  SSS  &  larger  JA  responsibilities!”  and
replacing it with the  sentence,  “Absolutely  tops,  the  best  I’ve  seen,
untiring leadership style; SSS & MAJCOM SJA responsibility a must!!”

It is further recommended that his record, to include  the  above  corrected
OPRs, be considered for promotion to the  grade  of  colonel  by  a  Special
Selection Board for the Calendar Year 2001A Central Colonel Selection  Board
and any subsequent boards for which the above OPRs were a matter of record.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2004-03117
in Executive Session on 18 May 2005, under the provisions of AFI 36-2603:

                       Ms. Kathleen M. Graham, Panel Chair
                       Mr. Wallace F. Beard, Jr., Member
                       Ms. Rita S. Looney, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPE, dated 13 Dec 04.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Dec 04.
    Exhibit E.  Letter, Counsel, dated 12 Jan 05, w/atch.




                                   KATHLEEN M. GRAHAM
                                   Panel Chair
AFBCMR BC-2004-03117




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, III,XXXXXXX, be corrected to show that:

            a.   The Field Grade Officer Performance Report (OPR), AF Form
707A, rendered for the period 5 Apr 1996 through 4 April 1997, be, and
hereby is, amended in Section VI, Rater Overall Assessment, by deleting the
last sentence, “Wing Staff Judge Advocate at first opportunity!” and
replacing it with the sentence, “Staff Judge Advocate, SSS at first
opportunity!!”

            b.   The OPR, AF Form 707A, rendered for the period
23 September 1998 through 19 July 1999, be, and hereby is, amended in
Section VI, Rater Overall Assessment, by deleting the last sentence,
“Impeccable officer, warrior leader, trusted confidant, boundless energy,
ace results, one of the best!” and replacing it with the sentence,
“Impeccable warrior officer, already leads GCM JA office to ace results -
NWC, MAJCOM SJA a must!!” and in Section VII, Additional Rater Overall
Assessment, by deleting the last sentence, “The absolute pinnacle of his
peer group-assign this superstar JAG only the AF’s toughest jobs-send to
SSS.” and replacing it with the sentence “Pinnacle of peers; send this
superstar to SSS, make him a MAJCOM SJA, assign only AF’s toughest job!”

            c.   The OPR, AF Form 707A, rendered for the period 20 July
1999 through 9 June 2000, be, and hereby is, amended in Section VI, Rater
Overall Assessment, by deleting the last sentence, “Absolutely tops, best
I’ve seen, untiring leadership style: a must for SSS & larger JA
responsibilities!” and replacing it with the sentence “Absolutely tops, the
best I’ve seen, untiring leadership style; SSS & MAJCOM SJA responsibility
a must!!”

      It is further directed that his record, to include the above
corrected OPRs, be considered for promotion to the grade of colonel by a
Special Selection Board for the Calendar Year 2001A Central Colonel
Selection Board and any subsequent boards for which the above OPRs were a
matter of record.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency