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


IN THE MATTER OF:      DOCKET NUMBER:  BC-1981-02400

      XXXXXXX    COUNSEL: DANIEL M. SCHEMBER

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  3 March 2007

________________________________________________________________

APPLICANT REQUESTS THAT:

His nonselections for promotion to the grade of lieutenant  colonel  be  set
aside; that his records be corrected to show that he  was  promoted  to  the
grade of lieutenant colonel by the Calendar  Year  1980  (CY  80)  Temporary
Lieutenant Colonel Selection Board; that he be  promoted  to  the  grade  he
would have held had he continued on active duty; that he be retired in  that
higher grade the date of the Board’s decision; and that he  be  awarded  the
Meritorious Service Medal (MSM) for service during the period 24 April  1976
through 24 May 1979.

In the alternative, his records be corrected to show  that  he  was  awarded
the MSM for service during the period 24 April 1976  through  24  May  1979,
his nonselections for promotion be set aside, and his  records  be  referred
to Special Selection Boards (SSBs) with the following statements inserted.

              Due to error and injustice, the indorser’s portion  of  Major
         “X’s” Officer Effectiveness Report (OER) closing 19  January  1979
         failed accurately to reflect his  performance  during  the  rating
         period and  was  ordered  removed  by  the  Air  Force  Board  for
         Correction of Military Records.  Had the error and  injustice  not
         occurred, the  indorser  of  this  OER,  Lieutenant  General  “H”,
         Commander in Chief, Pacific Air Forces, would have concurred fully
         with the rater’s maximum performance factor ratings and evaluation
         of potential, and would have  added  the  following  comments,  or
         their equivalent:


                    Wholeheartedly agree, Major “X” is truly an  outstanding
               officer.  I am thoroughly familiar with his superior  efforts
               in reorienting our base defense program.   His  contributions
               will significantly upgrade our Korean readiness posture.   He
               is  ready  for  accelerated  career  progression  and   early
               advancement.   I  fully  support  his  integration  into  the
               regular force.


                    Also due to error and injustice, Major “X’s” originally-
               ordered assignment commencing 30  June  1979  to  OL  SP,  HQ
               Tactical Air Cmd (TAC), Langley  AFB,  VA  as  Chief  of  the
               Operations Division, HQ TAC/SP, AFSC 8116, was changed to the
               Squadron  operations  position  at   Seymour   Johnson   AFB,
               designated AFSC 8124.  The TAC/SP position was in  a  command
               larger  than  PACAF,  with  greater  and  more  diverse  duty
               responsibilities.  Major  “X”  was  fully  deserving  of  the
               increased responsibility associated with the HQ TAC  position
               and should have been assigned to this position commencing  30
               June 1979.


It is further requested that, should he  be  nonselected  by  any  SSB,  the
Board require that he be furnished  all  records  created  or  used  by  the
selection board, and, that the SSB members testify at a  hearing  concerning
their reasons for not selecting him.

________________________________________________________________

APPLICANT CONTENDS THAT:

He should be retroactively promoted since he has never  been  afforded  full
and fair promotion consideration due to an  extensive  unfair  rating  at  a
critical point in his career.

The reasoning of the Board’s 1992 decision was erroneous, failed to  address
specific  findings  on  all  significant  points,  and  relied  on  improper
findings.

Counsel notes the Board previously determined it was  within  its  power  to
award retroactive promotion and that an OER with no indorsement and  showing
assignment to a low level  position  would  adversely  affect  an  officer’s
chance of promotion.  However, the Board refused to direct  the  applicant’s
promotion because his OER record was not so distorted  as  to  preclude  his
promotion assessment by an SSB; the elimination of the 1979  OER  would  not
have caused his promotion; and the partially  voided  OER  and  reassignment
caused no error or injustice.  However, as indicated in the military  expert
declarations, the contrary is  true.   In  this  respect,  Colonel  “S”,  an
officer with promotion  board  experience,  states  that  one  of  the  most
important  factors  is  the  presence  of  career  progression,   and   that
applicant’s 1979 reassignment  to  a  squadron-level  position  was  clearly
adverse, and, in  his  judgment,  virtually  assured  the  applicant’s  1980
promotion  nonselection.   He  also  states  that  recent  OERs,  not  those
rendered before 1971 are  the  important  considerations.  Further,  Colonel
“K”, an officer experienced in reviewing officer records to make  selections
for command and staff positions, states  that  applicant’s  1979  assignment
indicates that he has not maintained job and career  progression,  and  that
his career development faltered.  With  respect,  to  the  highly  favorable
indorsement of Lieutenant General “H”, Lieutenant General  “B”  states  that
it would have made the applicant’s  record  significantly  more  competitive
for promotion.  General “B” further states the best way  for  the  Board  to
have determined if the original proposed OER and 1979 assignment to a  high-
level position would not have caused the applicant’s 1980  promotion,  would
have been to compare  his  record,  in  both  its  improved  and  unimproved
condition, against that of the benchmark records considered by the SSB.

In August 1997 and January 1998, he spoke to Major “N”, USAF,  Retired,  who
advised him that during his service as Chief, Appeals and Analysis,  at  the
Air Force Military Personnel Center (AFMPC), his office received  a  Freedom
of Information Act (FOIA) request from the applicant.  The captain, who  was
responsible for preparing the response, told  Major  “N”  that  he  found  a
memorandum by the Air  Force  Chief  of  Security  Police,  which  he  later
destroyed, directing that applicant not be assigned to  a  command  position
or to any other position of responsibility in  the  security  police  field.
In view of this, counsel contends the general,  in  his  memorandum,  denied
the applicant any promotable job in the security police field.

In its 1992 decision, the Board invoked an improper legal standard since  it
had previously indicated the relevant question was whether  the  applicant’s
chance of selection for promotion would have  been  significantly  increased
by the improvements to his 1979 record.  Instead of applying the  “increased
chance of promotion” standard, the Board improperly applied  a  “would  have
caused promotion” standard.  In Saunders, the Court found  this  same  “sole
and exclusive” test to be legally impermissible since  it  was  contrary  to
statute and regulation.

The Board cited 1980  selection  rates  (31%  Regular  &  7%  Reserve)  that
combined first-time eligible majors with  those  previously  considered  and
not selected.  The Board failed to address the fact that 68.4% of the first-
time eligibles in the applicant’s controlled OER category were selected  for
promotion in 1980, compared to 63.7% of all first-time eligibles.

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

________________________________________________________________



STATEMENT OF FACTS:

On 17 July 1980, the Board considered applicant’s request that  the  Officer
Effectiveness Report (OER), closing 19 January 1979, be amended by  removing
the indorser’s comments and ratings.   However,  the  Board  concluded  that
sufficient doubt existed as to the accuracy of the report and voided  it  in
its entirety.

On 16 January 1981,  the  Board  considered  applicant’s  request  that  his
nonselection for promotion  by  the  Calendar  Year  1980  (CY80)  Temporary
Lieutenant Colonel Selection Board be set aside.   The  applicant  contended
the OER, closing 19 January 1979 had  not  been  removed  from  his  records
prior to the CY80 board convening.  However, the Board  found  that  all  of
the evidence indicated that  it  had  been  removed  prior  to  the  scoring
process for the board and denied his request.

On 30 October 1981, the Board considered  applicant’s  request  that  he  be
promoted to the grade of lieutenant colonel  as  if  selected  by  the  CY80
board and assigned to a lieutenant colonel position.   The  Board  found  no
evidence of error or injustice and denied the requests.

On 9 February 1983, the applicant’s  counsel  requested  reconsideration  of
the appeal and submitted additional documentation.  The  Board  reconsidered
applicant’s requests on 17 November 1983, and denied the appeal.

On 10 January 1986, the  Board  considered  applicant’s  requests  that  the
previously voided OER be amended and placed in the his  records  and  he  be
promoted to the grade of lieutenant colonel  as  if  selected  by  the  CY80
board, or in  the  alternative,  the  AF  Form  77  be  amended  and  he  be
considered for promotion to the grade of lieutenant  colonel  by  a  Special
Selection Board (SSB) for the CY80  board).   Based  on  the  recommendation
from HQ USAF/JACM, the Board voided the contested AF  Form  77;  placed  the
previously voided OER, closing 19 January 1979, in the applicant’s  records,
with the  indorser’s  ratings  and  comments  voided;  and  recommended  his
corrected record be considered for promotion by SSBs for  the  CY80  through
CY85 selection boards.  However, the  Board  found  no  basis  to  recommend
favorable consideration of the applicant’s request for direct promotion.

On 11 September 1989, the U.S. District Court for the District  of  Columbia
remanded the applicant’s request for  direct  promotion  to  the  Board  for
further review.

On 12 July 1990,  counsel  submitted  a  brief  pertaining  to  the  court’s
decision and requested the applicant be promoted to the grade of  lieutenant
colonel as if selected by the CY80 board; retired  in  the  grade  he  would
have held had he continued on active duty; he be retired effective the  date
of the Board’s decision and he be  awarded  the  Meritorious  Service  Medal
(MSM) for service during the period 24 April 1976 through 24 May  1979.   In
the alternative, counsel requested the applicant  be  awarded  the  MSM  and
considered for promotion by an SSB for the CY80 board.  On  10  March  1992,
the Board considered and denied the requests.   For  an  accounting  of  the
facts and circumstances surrounding the application, and  the  rationale  of
the earlier decision by the Board, see the  Second  Addendum  to  Record  of
Proceedings at Exhibit W.

On 3 June 1994, the U.S. District Court for the District of  Columbia  found
the Board’s decision  was  not  arbitrary  and  capricious  and  denied  the
applicant’s request for summary judgment (Exhibit X).

In a letter received on 3 April 1995, counsel requested  reconsideration  of
the  application  and  provided  additional  documentation,  consisting   of
declarations  from  Lieutenant  General  “B”,  and  Colonels  “S”  and  “K”,
indicating the Board’s 1992 decision was erroneous.   However,  on  6  April
2000, counsel was advised the Board examined his request and concluded  that
it did not meet the criteria for reconsideration by the Board.

By letter, dated 15 September 2005,  counsel  provided  a  copy  of  the  12
September 2005 remand order from the U.S. District Court  for  the  District
of Columbia directing  the  applicant’s  request  for  direct  promotion  be
remanded to the Board for further review and to address the  merits  of  the
expert  military  opinions  expressed  in  the  declarations  of  Lieutenant
General “B”,  Colonels  “S”  and  “K”,  and  the  other  evidence  submitted
(Exhibit Y).

Counsel was advised that the National Records Center  at  Suitland,  MD  had
been unable to locate the applicant’s  retired  AFBCMR  case  file.   In  an
effort to avoid further delay in processing the case, counsel was  requested
to provide his copy of the 1986 and 1992 administrative  records,  which  he
provided on 11 February 2006 (Exhibit Z).

________________________________________________________________

AIR FORCE EVALUATION:

HQ USAF/JAA states, in part that this is their  review  of  the  applicant’s
request for  reconsideration  of  the  Board’s  1992  decision  denying  him
relief.  On 6 April 2000, the Board, in reliance on  a  legal  opinion  from
AFPC/JA that the applicant’s further submissions did  not  constitute  newly
discovered relevant evidence denied this request.   On  12  September  2005,
the case was sent back to the Board  for  reconsideration  after  a  Federal
Appeals Court found the  Board’s  decision  against  reconsideration  to  be
arbitrary and capricious.  The  Court  ordered  the  Board  to  address  the
merits of the applicant’s motion for reconsideration;  the  expert  military
opinions  expressed  in  the  declarations  of  a  lieutenant  general,  two
colonels and other evidence the applicant submitted  with  his  motion;  and
any supplements to his motion.

The Court Order presents the Board  with  two  options.   First,  the  Board
could analyze the merits of applicant’s evidence and  determine  whether  it
supports his motion for reconsideration.  In other words,  the  Board  still
has the option to grant or deny the motion for reconsideration  so  long  as
it applies the statutory and regulatory  criteria  for  reconsideration  and
fully explains it decision.  The other option is to  grant  the  applicant’s
option for reconsideration and then examine his submissions to see  if  they
change the Board’s 1994 decision to deny  applicant’s  request  for  relief.
While the Court’s decision in no way suggests the  Board  should  grant  the
motion for reconsideration, they believe the better option is to  reconsider
this case on the merits and determine if his submissions  have  any  bearing
on the Board’s 1994 decision.  As a matter of equity, this  approach  allows
applicant to have his evidence considered.

HQ   USAF/JAA   concludes   by   recommending   applicant’s   request    for
reconsideration be granted to the extent it asks for  consideration  of  new
evidence.  However, that office believes the weight  to  be  given  to  this
evidence must be determined by the Board (A complete copy of  HQ  USAF/JAA’s
advisory opinion is included as Exhibit BB.

________________________________________________________________

COUNSEL’S REVIEW OF HQ USAF/JAA’s EVALUATION:

Counsel states the advisory opinion incorrectly asserts the  Board  has  the
“option” not to examine the applicant’s submissions to see  if  they  change
the Board’s 1992 decision to deny relief.  The Court has  ordered  the  case
remanded to the  Board  for  consideration  of  the  merits  of  the  expert
military opinions.  These military opinions attest  to  the  fact  that  the
Board’s 1992 decision was wrong.  As such, to address the  merits  of  these
opinions, the Board must determine whether they are correct.   To  determine
if they are correct, the Board must determine whether the 1992 decision  was
wrong.  Further, contrary to the advisory  opinion,  reconsideration  should
be granted as a mater of law, rather than a matter of  equity.   The  expert
military opinions show that in 1992, the Board  erroneously  relied  on  old
OERs and the wrong statistics.  As indicated  by  the  Court’s  review,  the
statistics show that, but for the error and  injustice  that  occurred,  the
applicant had a 68.4% chance of promotion in 1980.   Absent  the  damage  to
his record, it is more probable than not he would have been promoted.

The Board has previously  recognized  the  erroneous  and  unjust  Inspector
General (IG) accusations of misconduct by the applicant damaged  his  record
in a matter that adversely affected his  1980  promotion  opportunity.   The
Board further found the damage could not be repaired by merely  deletion  of
records and SSB consideration.  In view of this, and given the  evidence  of
record, the  Board  should  direct  the  applicant’s  retroactive  promotion
(Exhibit CC).

In  further  support  of  the  appeal,  applicant   submits   his   personal
declaration in which he indicates that the statement from the  former  Chief
of Appeals and Analysis at the Air Force Military Personnel  Center  (AFMPC)
is double hearsay only as to whether any  facts  stated  in  the  Lieutenant
General “B”  memorandum  are  true.   The  significance  of  the  Lieutenant
General “B” memorandum, however, is not the truth of what he said –  indeed,
its contents were erroneous and  unjust  –  but  the  fact  that  Lieutenant
General “B” wrote it and the effect of  his  having  done  so.   As  to  the
existence and  contents  of  the  Lieutenant  General  “B”  memorandum,  the
statement from the former Chief of Appeals and Analysis at AFMPC  is  single
hearsay not, as the advisory  opinion  incorrectly  claims,  double  hearsay
(Exhibit DD).

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Applicant’s request for award of the MSM for the  period  24 April  1976
through 25 May 1979 was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.  Having  said  this,  however,
since the applicant submits no evidence that he was recommended for the  MSM
during the period encompassing the  time  he  was  under  investigation  for
misconduct and/or use of poor judgment, we  find  no  compelling  reason  to
recommend approval of this belated request.  It is also not  unusual  for  a
senior officer to refuse to process a recommendation  for  an  award  on  an
individual that has been found to have committed  some  form  of  misconduct
during the award period.

2.  Pursuant to the Remand Order of the Court, we will  address  the  merits
of the applicant’s motion for reconsideration; the expert military  opinions
expressed in the  declarations  of  Lieutenant  General  “B”,  Colonel  “S”,
Colonel “K”, and other evidence applicant submitted  with  his  motion;  and
any supplements to his motion.  Although not ordered  to  do  so,  we  agree
with the recommendation of HQ USAF/JAA and believe the better option  is  to
reconsider this  case  on  the  merits  and  determine  if  the  applicant’s
submissions have any bearing on the Board’s 1994 decision.

3.  We have carefully considered the  expert  military  opinions  the  Court
ordered the Board to address and do  not  find  them  either  singularly  or
collectively sufficiently persuasive to change our  earlier  conclusions  in
the applicant’s case.  As noted by HQ USAF/JAA the expert military  opinions
merely reiterate facts  that  were  already  before  the  Board  and  assert
opinions that  the  Board  made  the  wrong  decision  on  remand  in  1991.
Lieutenant General “B’s”  declaration  reiterates  his  opinion,  previously
submitted to the Board, that the 1979 OER lessened  applicant’s  chances  of
promotion.  He then acknowledges the Board’s 1992  decision  and  gives  his
opinion as to why the Board’s decision  is  incorrect.   Colonel  “S’s”  and
Colonel “K’s” declarations inform the Board the facts  and  opinions  stated
in their previous submissions  to  the  Board  remain  true  and  that  they
“embrace  all  of  the  opinions”  stated  in   Lieutenant   General   “B’s”
declaration.  We do not  take  issue  with  the  assertions  of  the  expert
military opinions that a favorable OER and a higher  level  job  would  have
enhanced  the  applicant’s  chance  of  being  selected  for  promotion   to
lieutenant colonel by the 1980 selection board.  However,  in  view  of  our
earlier finding that, while the inclusion  in  the  record  of  a  partially
voided OER and low level reassignment had an adverse effect  on  applicant’s
chance  for  promotion,  his  record  was  not  so  distorted  that  a  duly
constituted SSB could not make a reasonable assessment of his potential  for
promotion against his peers, we do not find  the  expert  military  opinions
sufficiently compelling to conclude the applicant did  not  receive  a  full
and fair consideration for promotion by the SSBs.  The  statement  from  the
former  Chief  of  Appeals  and  Analysis  at  AFMPC  and  another   officer
indicating a degree of improper influence on the part of a  general  officer
in the assignment process is duly noted.  Nonetheless, since  the  applicant
was not exonerated of a number of instances of wrongdoing, we  do  not  find
it unreasonable for command officials to change his assignment to  one  with
less responsibilities.  The Board found fault with the conducting of the  IG
inquiry and, as a result, did not believe the endorser’s  downgrade  actions
were based on a complete understanding  of  all  the  circumstances  at  the
time.  Nevertheless, having access to all of the  circumstances,  the  Board
was also not convinced the applicant was wrongfully accused in  all  of  the
instances.  In view of the lapse of time, there will always  be  some  doubt
concerning the degree of the applicant’s culpability in  this  matter  given
the indication that the endorser eventually rescinded the LOR and  the  UIF.
On the other hand however, we will always be amazed as to why the  applicant
did not seek support from the endorser if  he  believed  he  had  eventually
been exonerated.

4.  Applicant’s request that  should  he  be  nonselected  by  any  SSB,  we
require that he be furnished all records created or used  by  the  selection
board; and that the SSB  members  testify  at  a  hearing  concerning  their
reasons for not selecting him is also duly  noted.   This  request  is  most
likely beyond our  jurisdiction.   However,  since  we  found  no  basis  to
recommend any further relief, there is no  cogent  reason  to  address  this
issue.

5.  In summary, we believe the applicant was  afforded  the  congressionally
recognized remedy for the error that was previously corrected by this  Board
– SSB consideration.  Applicant has offered no evidence  that  those  boards
were conducted improperly or unfairly, or that anyone associated  with  that
process  acted  improperly.   These   officials,   like   other   government
officials, are entitled  to  the  presumption  that  they  discharged  their
duties lawfully and in good faith.  All  that  applicant  and  counsel  have
offered is data reflecting a higher  selection  rate  for  IPZ  considerees,
speculation, and personal opinions that his record could not receive a  full
and fair consideration for promotion and, as a result, he should  receive  a
Secretarial promotion.  We continue to disagree.  Where many  good  officers
are competing for a limited number of promotions,  only  the  best  officers
can and should be promoted.   We  continue  to  believe  that  SSBs,  having
access to the benchmark records of the  original  selection  boards  and  an
appreciation of what those records mean – represent  the  fairest  and  best
practice to achieve this purpose.  The Board’s  long  standing  practice  of
considering direct promotion only in the most  extraordinary  circumstances,
where SSB  consideration  has  been  shown  to  be  totally  unworkable,  is
essential to maintaining the integrity of the selection process and  in  our
view the applicant’s case fails to present such circumstances.

6.  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 additional  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-1981-02400
in Executive Session on 2 August 2006, under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Renee M. Collier, Member
                 Mr. John E. B. Smith, Member

The following documentary evidence was considered:

    Exhibit W.  Second Addendum to Record of Proceedings,
                       Dated 6 Apr 92, w/atchs.
    Exhibit X.  Memorandum Opinion, US District Court for D.C.,
                       Filed 3 Jun 94.
    Exhibit Y.  Letter, Counsel, dated 15 Sep 05, w/atch.
    Exhibit Z.  Letter, Counsel, dated 11 Feb 06, w/atchs.
    Exhibit AA.  Letter, AFBCMR, dated 13 Apr 06.
    Exhibit BB.  Memo, AF/JAA, dated 23 May 06, w/atch.



    Exhibit CC.  Letter, AFBCMR, dated 25 May 06, w/atch.
    Exhibit DD.  Counsel’s Response to Advisory Opinion,
                 dated 22 Jun 06, w/atch.




                                   THOMAS S. MARKIEWICZ
                                   Chair