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


IN THE MATTER OF:      DOCKET NUMBER:  BC-1993-06923

            COUNSEL:  William S. Aramony

            HEARING DESIRED:  Yes

__________________________________________________________________

APPLICANT REQUESTS THAT:

Applicant’s requests remain the same as  previously  indicated.   However,
through counsel, applicant asks that primary consideration be given to the
following:

        a.  Void and remove from the applicant’s record the  OER  prepared
on him closing 29 Jun 87.

        b.  He be directly promoted to the grade of major as  if  selected
by the CY86B Major Central Selection Board.

        c.  He be directly promoted to the grade of lieutenant colonel  as
if selected by the CY91B Lieutenant Colonel Central Selection Board.

__________________________________________________________________

RESUME OF CASE:

On 31 March 2004, the Board reconsidered this case after it  was  remanded
to the Board by the United States Court of Federal Claims to determine  if
the applicant’s OER closing 9  May  86  violated  AFR  36-10  because  the
additional rater of record was not the rater’s rater.   In  a  31  Oct  03
brief of  counsel,  applicant  requested  the  Board  grant  him  De  novo
consideration of his case as previously submitted.  The  Board  determined
the applicant’s 9 May 86 OER did not violate AFR 36-10 and denied De  novo
consideration of the applicant’s case (Exhibit X).

On 13 Jan 05, the United States Court of Federal Claims  granted  a  joint
motion for remand by the Air Force and the applicant to permit the  AFBCMR
to address nine questions essentially as stated (Exhibit Y):

        1.  Given the opinion of the United States Court  of  Appeals  for
the Federal Circuit in L--- v. United States, did the additional rater  of
record on the OER closing 9 May 86 constitute a violation of AFR 36-10?

        2.  Did the applicant’s OER closing 29 Jun 87 violate AFR    36-10
by having comments covering actions that were performed and  rated  in  an
earlier OER and rating period?

        3.  Did the fact that the additional rater of record was  not  the
rater’s rater affect the level of endorsement on the OER closing 9 May 86?

        4.  Given the statement of Lieutenant General  A---,  dated  9 Jun
94, was there an injustice with the choice of an O-7 endorser, instead  of
an O-9 endorser on the applicant’s OER closing 21 Oct 86?

        5.  If an injustice upon the level of endorsement occurred, in Dec
86, would an O-6 instead of a higher-level endorsement (O-7 to  O-9)  have
made any difference to the applicant’s prospects for promotion to major?

        6.  Did the level  of  endorsement  make  any  difference  to  the
applicant’s prospects for promotion?

        7.  Would the fact that the applicant was promoted to major above-
the-promotion-zone (APZ) and not in-the-promotion-zone (IPZ) have made any
difference to his prospects for subsequent promotion to O-5?  If it  would
make a difference to his prospects for promotion,  is  this  an  injustice
that should be addressed by the Board?

        8.  During consideration for promotion to O-5, did  the  continued
presence of the 86 OERs in the applicant’s records make any difference  to
his prospects for promotion?

        9.  If no violation of AFR 36-10 occurred in  this  case,  did  an
injustice occur that nevertheless needs to be corrected?

Prior to its review of the case, the applicant was required  to  file  his
views with the AFBCMR.  In a brief, dated 14 Feb 05,  applicant’s  counsel
provided the following views of the Court’s questions above:

        1.  Counsel states that “clearly  yes”  the  additional  rater  of
record on the applicant’s  OER  closing  9  May  86  constituted  a  clear
violation of AFR 36-10.  Counsel notes that AFR 36-10 was changed in  1985
so that “persons other than additional raters” did not write OERs and that
the change specifically designated the additional  rater  as  the  rater’s
rater.  Counsel reviews who was the applicant’s rater during the period in
question and who was on record as the rater’s rater.   Counsel  references
statements made by the additional rater on the OER closing 9 May  86  that
he was never assigned as the rater of the applicant’s rater  and  that  he
did not know the “true fact” of the  applicant’s  performance  during  the
period in question.

        2.  Counsel notes that they do not find a complete copy of AFR 36-
10 in the record, but states  that  secondary  sources  reflect  that  OER
writers may not cite  performance  or  events  outside  of  the  reporting
period.  In support of his assertion,  counsel  references  a  performance
report preparation guide and a previous case  decided  by  the  AFBCMR  in
which relief was granted under similar  circumstances.   Counsel  requests
relief from the OER closing     29 Jun 87 based on equity.

        3.  Counsel states that the level of endorsement was  affected  on
both the OER closing 9 May 86 and the OER closing 21 Oct  86  due  to  the
wrong additional rater signing the 9 May 86 report.  He asserts  that  the
officers responsible for the language in the applicant’s OER and  for  the
level of endorsement did not know the applicant’s actual  performance  and
situation.

        4.  Counsel references the statement by an O-9 in the  applicant’s
chain, dated 9 Jun 94, that being aware of the facts  of  1986,  he  would
have signed the applicant’s OER closing 21 Oct 86 on 7 Nov 86 as endorser.
 Counsel states that an OER is the most important document in  the  record
of an officer and that “it is plain”  that  an  O-9  endorsement  and  the
replacement OER signed by the O-9 are  favorable  to  a  career.   Counsel
emphasizes that the O-9 and other  general  officers  in  the  applicant’s
chain state the choice of an O-7 endorser was based on incorrect facts and
perceptions.

        5.  Counsel states that his responses to item d above and  item  f
below are relevant  to  this  question.   He  notes  that  the  Air  Force
recognizes in IMC 85-1 to AFR 36-10 that both the level of endorsement and
endorser grade have impact on OER users.  He states the applicant  had  an
outstanding record before the May and October 86 OERs.  He opines that the
few,  15%,  navigator  non-selections  also  suggest  an  impact  on   the
applicant’s career by the OERs.

        6.  Counsel states it is clear that the level of endorsement  made
a difference to the applicant’s prospects  for  promotion.   He  indicates
that several Air Force officer statements of  record  discuss  the  damage
caused to the applicant’s career by the 86 OERs.  Counsel notes  that  the
appellate court decision discusses the connection between the OERs and the
applicant’s  nonselection  for  promotion.   Counsel  further  notes   the
endorsement on the applicant’s 9 May 86  OER  was  two  levels  below  the
endorsement on the OER immediately preceding it.  Counsel also notes  that
several General officers supported the applicant’s request  for  a  higher
level endorsement on the OER and stated that the lack of  higher  endorser
support indicated by  the  OER  led  to  the  applicant’s  pass  over  for
promotion to major.

        7.  Counsel states that with his pass over for promotion to major,
the applicant was no  longer  competitive.   He  notes  that  85%  of  the
navigators  considered  for  promotion  during  the  subject  Board   were
selected.  Counsel opines that logically  and  statistically,  an  officer
among  the  15%  not  selected  during  their  IPZ  board  is  no   longer
competitive.  Counsel provides six “factual” bullets of the impact  caused
by the pass over.

        8.  Counsel opines that  the  presence  of  the  86  OERs  in  the
applicant’s record continued to  make  a  difference  in  the  applicant’s
prospects for promotion.  He references their earlier submission  in  this
case in Oct 03 for a discussion on how the applicant’s record was tainted.
 Counsel notes how competitive lieutenant colonel promotion boards were in
1992 and 1993.  He opines that the AFBCMR knows from its own cases the Air
Force was beginning to downsize under Congressional pressure.   He  states
the applicant was denied  certain  schools  and  assignments,  and  a  DFR
because of his pass over and in favor of more competitive  officers.   The
86 OERs remained a matter of  record  to  be  reviewed  by  O-5  promotion
boards.  An OER is the most important document in a promotion file, so the
OERs made a difference.

        9.  Counsel notes that the AFBCMR earlier felt constrained not  to
go beyond the first remand order in response to their requests.  He states
that the current remand order  makes  it  clear  that  the  Court  is  not
dictating Board results.  Counsel opines that an  injustice  happened  for
reasons seen in response to the Court’s  questions  and  in  the  L---  V.
United States decision and in their earlier submissions.

Counsel’s complete submission is at Exhibit Z.

__________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s request and as the Air Force OPR for the questions
posed by the Court, AFPC/DPPPE provided responses to the questions  posed.
They provide essentially the following responses to the Court’s  questions
as indicated above:

        1.  AFR 36-10, Officer Evaluations, 25 Oct 82,  is  the  governing
directive.  Paragraph  202  [sic]  states  that  an  additional  rater  is
“Usually the rater’s rater as designated on  an  AF  Form  2095  or  other
source document.”  Subparagraph 2-2a goes on  to  state,  “The  additional
rater may defer to a person higher in the  rating  chain  if  desired,  in
which case the person deferred to becomes the additional rater.”  A change
was released 23 Feb 85 and effective for all reports closing on or after 1
Apr 85.  The change, paragraph 3-1d(2), stated “When  the  ratee's  parent
command authorized the rater (but not the additional rater) to be  from  a
different command, the additional rater will be at  the  lowest  practical
level.”  The paragraph went on  to  state,  it  did  allow  commanders  to
“deviate from organizational  structure  for  rating  purposes  when  they
deemed it justifiable.”  As such they are of the opinion AFR 36-10 was not
violated, and the report is accurate as written.

        2.  AFPC/DPPPE states that if, in fact comments on the     29  Jun
87 OER did reference actions which happened in a previous reporting period
and were already previously considered, then this would be a violation  of
AFR 36-10, paragraph 1-5.

        3.  AFPC/DPPPE indicates it is difficult to determine at this time
whether the level of endorsement would have changed had the actual rater’s
rater acted as additional rater.  However, they note that the acting  Wing
commander stated on 19 Aug 93, “… the text of the  original  OER  did  not
affect the final endorsement level for  the  OER.   While  the  rater  was
seeking a higher final endorsement level than given, the decision was  not
his to make.”  The letter went on to state, “That decision was made by  me
only after a full review of all available information.  The  text  of  the
OER as corrected would not then, and does not  now,  justify  raising  the
endorsement level.”  They note that it was  the  acting  Wing  commander’s
decision to make, not the lower members of the rating chain.

        4.  AFPC/DPPPE states the level of endorsement was  based  on  the
available information at the time the report was  completed.   They  state
that based on the documentation provided, there does not  appear  to  have
been an injustice.  However, they acknowledge that,  clearly,  having  the
OER endorsed by an O-9 could have  given  the  perception  of  a  stronger
report versus an endorsement by an  O-7.

        5.  There is the possibility that an endorsement by an O-6 instead
of a higher level endorsement (O-7 to O-9) on the applicant’s OER  made  a
difference on his prospects for promotion  to  major.   All  things  being
equal, a higher level endorsement level could be the deciding factor  when
selecting  individuals  for  promotion.   However,  a  higher   level   of
endorsement does not guarantee promotion.

         6.  AFPC/DPPPE  states  there   is   insufficient   documentation
available to determine whether the level of endorsement on the applicant’s
OER made a difference on his prospects  for  promotion  to  major.   Board
members use  the  “whole  person”  concept  to  subjectively  assess  each
officer’s relative potential to serve in the next higher grade.  There  is
the possibility  the  level  of  endorsement  made  a  difference  to  the
applicant’s prospects for promotion, but no guarantee.

        7.  There is nothing in an officer’s record to flag them as an APZ
promotee, nor do they believe it would  have  made  a  difference  in  his
prospects for further promotions.  They state that  promotion  boards  are
only provided the date of rank  criteria  for  the  present  board.   They
further state it would be difficult to try and figure out if  the  officer
had been previously picked up APZ versus IPZ. They note there is only a 30-
day difference between the date of rank of the  last  promotion  increment
IPZ or BPZ from the previous board.  A board member would have to know the
date of rank incremented by each of the previous boards to determine  what
board the officer was selected from.  They  further  note  that  the  year
group of the officer may be different from the “normal” IPZ eligibles, but
as noted in every board, not all commissioned dates fall perfectly in line
with the IPZ year group.

        8.  OERs are just one  aspect  of  the  Officer  Selection  Record
(OSR).  Board members use  the  “whole  person”  concept  to  subjectively
assess each officer’s relative potential  to  serve  in  the  next  higher
grade.  During the promotion board process, the level  of  endorsement  on
the 86 report could have made a difference to  the  applicant’s  prospects
for promotion.  It is a possibility, not a certainty.

        9.  AFPC/DPPPE states they do not believe the applicant  has  been
the victim of an injustice that needs to be corrected.   However,  if  the
Board disagrees, they strongly recommend the applicant  receive  promotion
consideration by special selection board (SSB).

AFPC/DPPPE indicates that they stand by their original determination  that
AFR 36-10 was not violated and  the  applicant’s  report  is  accurate  as
written.

The complete response is at Exhibit AA.

__________________________________________________________________

APPLICANT’S RESPONSE TO AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation in  a  nine-page
brief.  He states that AFPC/DPPPE agrees that matters outside  the  rating
period cannot  be  considered  in  an  OER  and  that  the  OER  level  of
endorsement could be the deciding factor  in  promotion.   Counsel  opines
that AFPC/DPPPE gives unsubstantiated and not objective  opinions  without
support from the record.   Counsel  provides  the  following  comments  on
AFPC/DPPPE’s responses to the Court’s questions:

        1.  AFPC/DPPPE did not tell the Board everything about the  change
to AFR 36-10, showing  that  it  does  not  give  objective  and  complete
opinions.  They failed to tell the Board that the stated intent of AFR 36-
10 is that raters have actual knowledge  of  performance.   Counsel  notes
that the additional rater of record did not have personal knowledge of the
applicant’s performance and signed the OER  for  convenience.   He  states
further that AFPC/DPPPE conveniently omits from its  opinion  language  in
the change to AFR 36-10 that  states  deviations  must  be  judicious  and
clearly improve the evaluation process consistent with the best  interests
of the Air Force.  Counsel discusses the example of such a deviation given
in the change and opines that the  change  of  additional  raters  on  the
applicant’s 9 May 86 OER violated  the  regulation  and  clearly  did  not
improve the rating process.

        2.  Counsel states that the OER closing 29 Jun 87 violated AFR 36-
10 by containing comments in both the additional rater and endorser blocks
about events  outside  the  rating  period.   He  references  AFPC/DPPPE’s
comments on this issue as support for his view.  Counsel also states  that
the OER closing 21 Oct 86 is similarly affected  because  the  endorsement
level of the OER was impacted by reliance on “incorrect information”  tied
to events outside the rating period.   Counsel  states  that  two  General
officers attempted to correct this error by requesting to  substitute  the
OER with one endorsed by an O-9.  Counsel cites this OER as a good example
of why the Board “needs to  consider”  directly  promoting  the  applicant
rather than granting an SSB.

        3.  Counsel states their  brief  and  exhibits  set  forth  facts,
evidence, statements by individuals  that  participated  in  choosing  the
endorser, and statements by the “proper” additional rater.  He states that
the rater and additional rater of record  have  stated  if  they  had  had
knowledge of the true facts, it would have impacted their  recommendation.
The “proper” additional rater not only had a  very  high  opinion  of  the
applicant’s performance, but  also  knew  what  happened  with  the  Saudi
influence.  Counsel states that General officers who actually observed the
applicant’s performance, unlike the acting Wing  commander,  have  written
the AFBCMR for decades asking for relief based on the true facts.  Counsel
opines that the acting Wing commander is not the individual to rely on  in
this case.  He states that the commander did not discuss  the  applicant’s
performance with the applicant’s supervisors before deciding the level  of
endorsement, which is a violation of the intent  of  AFR  36-10.   Counsel
states the commander still had not discussed the situation  involving  the
applicant when he wrote his statement in the applicant’s  appeal  that  he
would not change his endorsement.

        4.  AFPC/DPPPE agrees that “clearly having an OER endorsed by an O-
9 would have given the perception of a stronger report.”   Counsel  opines
that their response that the choice of endorser was based  on  information
available at the time is fallacious and evades the inequities.  He  states
that Generals have said on paper if they had had accurate information they
would have given an O-9 endorsement.

        5.  Counsel notes that AFPC/DPPPE agrees  that  all  things  being
equal a  higher  level  endorsement  could  be  the  deciding  factor  for
promotion.  Counsel emphasizes  “deciding  factor.”   Counsel  appears  to
indicate that AFPC/DPPPE moved away from discussing the importance of OERs
by discussing the “whole person”  concept.   Counsel  opines  that  it  is
correct that an Air Force officer is entitled to have his  service  career
projected on a fair  and  equitable  basis  and  asks  for  the  Board  to
specifically  find  such.   Counsel  further  opines  that  “whole  person
consideration  should  include  the  inequities  that  may  have   impeded
promotion.”  Counsel asserts this is the reason they ask  the  Board,  and
not an SSB, to make the decision regarding the applicant’s promotion.

        6.  AFPC/DPPPE states it has insufficient documentation to know if
a higher level endorsement would make any difference  to  the  applicant’s
promotion prospects.  The change to AFR 36-10 reads that “both  the  level
of indorsement and indorser grade have  impact  on  OER  users.”   Counsel
references the response to question 5 above that  stated  a  higher  level
endorsement could be the deciding  factor.   Counsel  concludes  that  the
level of endorsement makes  a  difference.   Counsel  asks  the  Board  to
determine if it would have resulted in  promotion  based  on  the  reasons
given in footnote two of this rebuttal and seen throughout the applicant’s
record.

         7.  Counsel  states  that  AFPC/DPPPE  ignores  the   record   by
indicating the promotion board did not know of the applicant’s  pass  over
to major.  Counsel notes that the OER closing 29 Jun 87 referenced the mal-
assignment, Saudi situation, and in two different  blocks  the  “promotion
trauma” (Block VII) and his nonselection for major… (Block VIII).  Counsel
opines that if a promotion board did their job  and  carefully  considered
records it would know the applicant was APZ.  He states the applicant  was
told by an O-7 voting member  of  the  applicant’s  93  board  that  being
selected  above-the-zone  made  further  promotion  virtually  impossible.
Counsel also notes that the O-7 states because  of  the  applicant’s  pass
over, he could not waste a “Definitely Promote”  promotion  recommendation
on him.  Because of his pass over to major, the applicant was not  allowed
to retire at 20 years of service.  He only missed by days sanctuary due to
years of service.  They request that applicant be continued to  a  20-year
retirement.

        8.  Counsel considers AFPC/DPPPE’s response fallacious  when  they
indicated that OERs are one aspect of a record to the question of  whether
the continued presence of the OERs closing  in  1986  in  the  applicant’s
record make any difference to the applicant’s promotion prospects to  O-5.
He states that OERs are the most important aspect of the  record  by  far.
Counsel  references  the  statement  made  by  AFPC/DPPPE  that   an   O-9
endorsement on one 1986 OER could have  made  a  difference  to  promotion
prospects.  Counsel states that the main thing a promotion board considers
is OERs.

         9.  Counsel  comments  that  equity  and  justice  “are  not  the
provinces” of personnel.  The Board has that job.  Counsel  discusses  how
the incident with the Saudi trainee impacted the applicant and  notes  the
support the applicant has received to try and correct his record.  Counsel
states that they “find it highly offensive and against  the  intent  of  a
fair rating system, and  unconstitutional,  that  a  foreign  government’s
influence can impact the rating of an American  officer  because  American
officers did not do their job and at least ask the additional rater  about
performance and the Saudi trainee.”  Counsel  notes  that  most  uniformed
officers have supported the applicant as has the Government in agreeing to
remand, and the courts.  However, only the Board can  give  the  applicant
proper relief.

Counsel’s complete response, with attachments, is at Exhibit CC.

__________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Insufficient relevant evidence has been presented to  demonstrate  the
existence of error or injustice  regarding  the  following  requests  made
previously or in the present reconsideration of this appeal:

        a.  Request for direct promotion to  the  grade  of  major  as  if
selected by the CY86B Major Central Selection Board.

        b.  Request for  direct  promotion  to  the  grade  of  lieutenant
colonel as if selected by the CY91B Lieutenant Colonel  Central  Selection
Board.

        c.  Request that his records be  corrected  to  show  he  was  not
separated from the Air Force on 31 Aug 94 and retired  effective    1  Sep
94, but was continued on active duty until he reached 20 years of  service
for retirement.

        d.  Request that his OER rendered for the period 30 Jun 90 through
29 Jun 91 be amended in Sections VI and VII as recommended  by  the  rater
and additional rater.

        e.  Request to void the Promotion Recommendation Forms rendered on
him and viewed by the CY92B and CY93A Lieutenant Colonel Central Selection
Boards.

Since we view items c through e as being  contingent  on  the  applicant’s
request for direct promotion, our rationale for denial of direct promotion
is applicable.  We will address specific  arguments  made  by  applicant’s
counsel in our response to the nine questions put forth to  the  Board  by
the Court.  Regarding the applicant’s request for direct promotion, we  do
not find that he has been the victim of an error or injustice  that  would
warrant such a remedy through  the  correction  of  records  process.   We
believe that the issue of who is best  qualified  for  promotion  among  a
competitive group of officers is best left to a promotion board  empowered
by law for that purpose.   We  note  that  the  promotion  board  has  the
advantage of reviewing the records of all eligible officers and  making  a
determination based  on  such  review  of  who  is  “best  qualified”  for
promotion.  While we can make a  subjective  judgment  the  applicant  was
qualified for promotion, we cannot determine he was  grouped  among  those
considered “best qualified.”  Additionally, where  we  determine  that  an
error  or  injustice  has  occurred  that  has  possibly  compromised   an
applicant’s promotion opportunity through the promotion board process,  we
believe that promotion consideration through the  SSB  process,  with  the
record corrected, is the preferred  method  to  resolve  any  question  on
promotion.  Hence any determination to directly promote would have  to  be
based on a view the applicant  has  been  the  victim  of  such  egregious
actions as to leave no other recourse.  The circumstances of this case  do
not lead us to such a finding.

2.  The following responses are provided to the questions (Q) posed by the
Court based on this Board’s review of the responses of both the Air  Force
and the applicant:

        a.(Q1):  In our  view  the  Additional  Rater  of  record  on  the
applicant’s OER closing 9 May 86 did not constitute a violation of AFR 36-
10.  In our view the language in AFR  36-10,  IMC  85  incorporated,  gave
commanders the flexibility to deviate from the  definition  of  Additional
Rater as explained in paragraph 2-2.  In the rationale and discussion  for
the change to designate the additional rater  as  the  rater’s  rater,  it
clearly states that “most Additional Raters  will  have  better  and  more
personal knowledge of the ratee, and their comments will add value to  the
OER.   At  the  same  time,  the  policy  DOES  NOT  ELIMINATE   VOLUNTARY
ESCALATION.”  The question here appears to be why the Additional Rater was
escalated  in  this  case.   First,  absent  evidence   of   inappropriate
motivation,  the  Board  will  normally  rely  upon  the  presumption   of
regularity and presume deviation was justifiable.  Although the reason for
the deviation is not documented (or required to be),  in  our  view  there
appears a reasonable basis for changing the additional rater in  that  the
rater’s rater was assigned outside the country  at  the  time  the  report
became due.  Although the rater was also outside the country, it has  been
stipulated that he signed forms prior to  leaving.   Normally,  subsequent
raters do not see or endorse a report until it has  cleared  the  previous
level.

        b.(Q2):  It appears to the Board that  the  comments  in  the  OER
closing 29 Jun 87 do not violate AFR 36-10.  We note that  the  regulation
states, “As a rule,  don’t  allow  incidents  that  occurred  outside  the
reporting period to influence the report.  If an  incident  that  occurred
before the reporting period comes to your attention, you may include it in
the report if it adds significant information that has not previously been
reported.”  In our review of the OERs written prior to this report, we  do
not see comments about the incident that were later mentioned  in  Section
VIII of the Jun 87 report.  Additionally, we note this report was  written
in a  manner  favorable  to  the  applicant  and  may  have  significantly
contributed to his selection for promotion to major.  We do not  think  it
appropriate that this report be removed because the applicant believes  it
has now served its purpose.

        c.(Q3):  We do not believe the fact that the additional  rater  on
the OER closing 9 May 86 was not the rater’s rater affected the  level  of
endorsement.  Counsel has made strong arguments against the  Board  giving
weight to the Wing commander’s statement that he would not have  sought  a
higher-level endorsement even in the face of new evidence about the  Saudi
situation involving  the  applicant.   However,  we  do  not  believe  the
commander’s position  can  be  so  easily  dismissed.   In  reviewing  the
statements submitted in support of the applicant by his rater, the rater’s
rater, the unit commander, and additional rater of record, we do not  find
them to be strongly supportive.  We note that most state they became aware
of information that “could” have  affected  their  recommendation  of  the
level  of  the  applicant’s  endorsement.   We  note  that  commanders  in
positions such  as  the  endorser  on  the  OER  were  invested  with  the
discretionary authority to make such decisions and that any  challenge  to
their decision must  be  fully  substantiated.   We  do  not  believe  the
evidence  submitted  by  the  applicant  is  sufficient  to  overcome  the
commander’s declaration of what his actions would have been regardless  of
who signed the report as Additional Rater.

        d.(Q4):  Although we find no injustice occurred in  the  selection
of an O-7 endorser rather than an O-9 at  the  time  the  applicant’s  OER
closing 21 Oct 86 was prepared, given that the O-9 endorser has stated  he
would have signed the report and has submitted a substitute report with  a
revised  endorsement,  we  would  recommend  the  report  of   record   be
substituted with the new  report.   In  cases  dealing  with  requests  to
correct performance reports, support from the  rating  chain  is  often  a
deciding factor when relief is granted.  Although the O-9 states  that  he
is basing his decision on new information he did not previously have,  and
thus committed no error or injustice we  believe  in  this  instance  that
substitution of the report would extend the benefit of the  doubt  to  the
applicant that it can be an error for a potential rating official  to  not
have information so relevant to a endorsement decision.

        e.(Q5):  As previously stated, we  do  not  believe  an  injustice
occurred in the level of endorsement.  However, we agree  with  AFPC/DPPPE
that, all things being equal, there is the possibility that endorsement by
an O-6 rather than a higher level endorsement  (O-7  to  O-9)  could  have
impacted the applicant’s promotion opportunity.  Endorsement  level  is  a
means of differentiating  between  officers’  performance.   There  is  no
inherent right to a certain level of endorsement and the  final  level  is
generally based on the subjective determination of those empowered to make
such decisions, even when they may disagree with recommendations  received
from others in the ratee’s chain of command.

        f.(Q6):  Without having been a member of the applicant’s promotion
board, it is not possible  to  state  with  certainty  that  higher  level
endorsements would have resulted in  his  promotion.   We  believe  it  is
accurate to state that had he had higher level  endorsements,  his  record
would have been better and possibly more competitive.  The key here though
is that promotion is competitive and that endorsement level may  not  have
been sufficient to rate the  applicant  among  the  “best  qualified”  for
promotion.

         g.(Q7):  We  do  not  believe  the   applicant’s   above-the-zone
promotion to major would have made any difference in his promotion to O-5.
 The applicant’s overall record is the most critical factor.  As  we  have
previously stated, we do not find error or injustice  that  would  warrant
the applicant’s direct promotion.  Since  we  have  recommended  that  the
applicant’s OER closing 21 Oct 86 be substituted with a corrected  report,
this would warrant his consideration for promotion to major by SSB for his
IPZ board.  Should the applicant be selected for promotion  to  major,  he
would be subsequently entitled to promotion consideration by  SSB  to  the
grade of lieutenant colonel.  In fact, since the OER closing     21 Oct 86
was a matter of record for his O-5 promotion  boards,  he  would  also  be
entitled to SSB for any boards for which it was a matter of record.

        h.(Q8):  The continued presence of the 86 OERs could have  made  a
difference in the applicant’s promotion prospects to O-5.  Since the  OERs
constituted a part of his Officer Selection Record (OSR), they would  have
been weighed along with everything else in  the  OSR.   We  reiterate  our
previously stated view that the  presence  of  the  OERs  in  his  officer
selection record did not constitute an injustice to the applicant and note
the recommended correction to the OER closing  21  Oct  86  and  promotion
consideration by SSB.

        i.(Q9):  Other than the recommended correction to the OER  closing
21 Oct 86, we do not believe an injustice otherwise occurred  that  should
be corrected.  We have provided our rationale above.

In view of the findings above, we recommend  the  applicant’s  records  be
corrected as indicated below.

3.  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 the Officer Evaluation
Report (OER), AF Form 707, rendered for the period 10 May 86 to 21  Oct
86 be substituted with the revised report signed by the Deputy Chief of
Staff, Operations, HQ Tactical Air Command vice the Commander, 28th Air
Division.

It is further recommended that he be considered for  promotion  to  the
grade of major by special selection board for the CY86B  Major  Central
Selection Board with the corrected record and any subsequent boards for
which the revised OER was not a matter of record.

__________________________________________________________________

The following members of the Board considered Docket  Number  93-06923  in
Executive Session on 24 June 2005, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Richard A. Peterson, Member
      Mr. James W. Russell, III, Member

All members voted to correct the records, as recommended.   The  following
additional documentary evidence was considered:

    Exhibit V.  ROP, dated 27 Jul 94, w/atchs.
    Exhibit W.  Addendum ROP, dated 25 Jun 98, w/atchs.
    Exhibit X.  Second Addendum ROP, dated 20 Apr 04, w/atchs.
    Exhibit Y.  US Court of Federal Claims Order,
                dated 13 Jan 05.
    Exhibit Z.  Letter, Counsel, dated 14 Feb 05, w/atchs.
    Exhibit AA. Memorandum, AFPC/DPPPE, dated 20 May 05, w/atchs.
    Exhibit BB. Letter, AFBCMR, dated 26 May 05.
    Exhibit CC. Letter, Counsel, dated 19 Jun 05.




                                             THOMAS S. MARKIEWICZ
                                             Chair

AFBCMR BC-1993-06923


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 [applicant], be corrected to show that the Officer
Evaluation Report (OER), AF Form 707, rendered for the period 10 May 86
to 21 Oct 86 be, and hereby is, substituted with the attached revised
report signed by the Deputy Chief of Staff, Operations, HQ Tactical Air
Command vice the Commander, 28th Air Division.

      It is further directed he be considered for promotion to the grade of
major by special selection board for the CY86B Major Central Selection
Board with the corrected record and any subsequent boards for which the
revised OER was not a matter of record.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency


Attachment
Revised OER