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


IN THE MATTER OF:                       DOCKET NUMBER:  BC-1996-01804
                                              INDEX   CODE:    131.01,
131.10
      XXXXXXX                           COUNSEL:  GUY J. FERRANTE

                                             HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for  reconsideration,  he  requests  direct
promotion to the grade of colonel as if selected by  the  Fiscal  Year
1993 (FY93) Reserve of the Air Force (ResAF) Colonel  Overall  Vacancy
Selection Board.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant met the FY93, FY94, and FY95 ResAF boards  but  was  not
selected for promotion to  the  Reserve  grade  of  colonel.   He  was
involuntarily placed in the Retired Reserve effective 31 Jan 95.

In a application dated 27 Jun 96, the applicant requested his  Officer
Selection Briefs (OSBs) considered by the FY93, FY94, and  FY95  ResAF
Colonel Overall Vacancy  Selection  Boards  be  amended;  that  he  be
promoted to the grade of colonel as if selected  by,  preferably,  the
FY93 board; and his record reflect continuous Reserve duty  since  his
involuntary retirement with all back pay and entitlements.

On 26 Nov 96, the Board granted the applicant’s request to correct his
OSBs, but denied his request for direct promotion. Instead, the  Board
recommended the applicant be given  consideration  by  Special  Review
Board(s) (SRB) for the colonel promotion  board(s).   The  applicant’s
request for  reinstatement  was  held  in  abeyance  pending  the  SRB
results.

A complete copy of the Record of  Proceedings  (ROP)  is  attached  at
Exhibit D.

As a result of the Board’s action, the applicant’s OSBs were corrected
and he was considered but not selected for promotion by SRBs  for  the
FY93, FY94, and FY95 boards.  He was notified of his nonselections  by
AFBCMR letter dated 16 Jul 97 (Exhibit E).

The  applicant  subsequently  requested  reconsideration  in  Mar  98,
contending his nonselections for promotion should be set aside on  the
basis that the Central Reserve Officer  Promotion  Act  (ROPA)  Boards
were conducted in violation of statute and Air Force directives.   The
issues he raised were similar  to  those  pertaining  to  the  Officer
Promotion System and which had been contended on the active duty  side
over the past several years.  He asked for direct promotion to colonel
as if selected by the FY93 ROPA board, arguing  that  a  cited  AFBCMR
case granting direct promotion was  similar  to  his  situation.   Two
advisory opinions were obtained from HQ ARPC/JA,  both  of  which  the
applicant rebutted.  On 23 Sep 96, the Board  denied  the  applicant’s
appeal, explaining the differences between  the  cited  case  and  the
applicant’s and concluding the applicant  had  not  substantiated  his
allegations the ROPA boards and the SRB process were in  violation  of
statute, he was deprived of equitable promotion consideration,  or  he
would and should have been promoted to the grade of colonel.

A complete copy of the Addendum ROP (AROP) is attached at Exhibit N.

The applicant retained counsel who, in a 19 Oct  05  brief,  requested
reconsideration.  Counsel argued, in part, the Board  was  obliged  to
correct the consequences of the original error by  directly  promoting
the applicant because his circumstances  were  “exceptional”  and  his
promotion  nonselection  was  infected  by  both   legal   error   and
fundamental  injustice.   Counsel  submitted  statements  (and   other
attachments) from senior officers familiar with the applicant’s career
who essentially contended the applicant’s  record  was  so  strong  he
would have been promoted if his record had  been  correct  when  first
considered by the central selection boards.  Counsel also argued that,
if the applicant’s  non-selections  were  attributable  to  his  brief
period of inactivity that arose through no choice  or  fault  of  his,
then he should not  be  deprived  of  the  promotion  rightfully  his.
Counsel asserted a competitor [Col R--] with less  impressive  records
than the applicant’s  was  promoted  to  colonel  in  1995  while  the
applicant’s inaccurate records deprived him of the deserved  promotion
he would have received had they been correct.  If the SRBs  could  not
rectify this error by recommending  promotion,  then  the  Board  must
direct the applicant’s retroactive promotion to the grade of colonel.

Statements were provided from three individuals (two retired brigadier
generals, and a retired colonel),  who  indicated  they  were  in  the
applicant’s chain of command and endorsed his direct  promotion  based
on their experience  sitting  on  promotion  boards,  the  applicant’s
superiority to his  competitors,  and  the  errors  contained  in  his
records when first considered by the  selection  boards  [subsequently
corrected for the SRB process].  A retired major general who  was  the
adjutant general of the Michigan Air  National  Guard  (MI  ANG)  also
endorsed the applicant’s promotion.

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

However, the Board concluded the submission did not meet the  criteria
for reconsideration, i.e., evidence was both  new  and  relevant,  and
denied the applicant’s request for reconsideration.  The applicant was
so notified of the Board’s decision by AFBCMR letter dated 17 Feb  06,
provided at Exhibit P.

In a letter dated 20 Jun 06, counsel argues the Board should not  have
denied the applicant’s request for reconsideration because it did  not
simply reiterate facts previously addressed--it advanced new arguments
based on new evidence that was previously unavailable  and  was  never
considered by the Board.  In this latest submission, counsel  includes
a statement from Col R--, who was selected for promotion to colonel in
1995 and who indicates he could not provide [his personnel file to the
applicant for comparison] until after his retirement from active  duty
in Aug 00. Therefore,  the  applicant’s  request  for  reconsideration
should be considered and the requested relief granted.

Counsel’s complete submission, with attachment, is at Exhibit Q.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

The statements provided in this  and  counsel’s  earlier  request  for
reconsideration presumably are meant  to  bolster  his  assertion  the
applicant’s circumstances are so exceptional only a  direct  promotion
will correct the alleged injustice done to his client.   We  disagree.
The applicant’s OSBs for  the  FY93,  FY94,  and  FY95  ResAF  Colonel
Overall Vacancy Selection Boards were corrected and  he  was  afforded
SRB consideration for these boards. However, he was not  selected  for
promotion and therefore not reinstated. Counsel  subsequently  argued,
in part, that the applicant would have been selected  when  originally
considered if his unit had not been inactivated and the errors in  his
record had not occurred in the first place. The  submitted  statements
contend the applicant’s superior record  warranted  promotion  to  the
grade  of  colonel  over  other  selectees  with  supposedly  inferior
records. These arguments are essentially opinion and speculation.  The
documentation presented has  not  demonstrated  the  promotion  boards
would, or should, have promoted the applicant when he  was  originally
considered or that he was not afforded  full  and  fair  consideration
through  the  SRB  process.  The  applicant’s  disappointment  in  his
nonselections is understandable and his  supporters  are  entitled  to
their opinions.  However,  we  cannot  determine  with  certainty  the
original promotion board(s) would have selected the applicant had  his
circumstances been different.  The applicant’s circumstances warranted
the relief he was afforded through  the  SRB  process;  they  did  not
warrant a guaranteed or directed promotion.  In view of the above  and
absent persuasive evidence to the contrary, we conclude the  applicant
has failed to sustain his burden of having suffered either an error or
an injustice.  Therefore, we find no  compelling  basis  to  recommend
granting any relief beyond that already afforded this applicant.

The documentation provided with this case was sufficient to  give  the
Board a clear understanding of the  issues  involved  and  a  personal
appearance, with or without legal counsel, would not  have  materially
added to that understanding.  Therefore, the request for a hearing  is
not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  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  this  application  in
Executive Session on 2 August 2006, under the provisions  of  AFI  36-
2603:

                             Mr. Thomas S. Markiewicz, Chair
                             Mr. Charles E. Bennett, Member
                             Mr. Richard A. Peterson, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
1996-01804 was considered:

   Exhibit N.  AROP, dated 22 Oct 99, w/atchs.
   Exhibit O.  Counsel’s Letter, dated 19 Oct 05, w/atchs.
   Exhibit P.  AFBCMR Letter, dated 17 Feb 06.
   Exhibit Q.  Counsel’s Letter, dated 20 Jun 06, w/atch.




                                   THOMAS S. MARKIEWICZ
                                   Chair