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

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2002-02532
                                        INDEX CODE:  110.02, 111.05,
                                        126.00, 131.02
                             COUNSEL:  Mr. George E. Day
                                        HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  12 Jul 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Officer Performance Reports (OPRs) closing 10 Feb 02 and 10 Feb  03,
be removed from his records.

2.  He be promoted to the grade of lieutenant colonel.

3.  His Letter of Evaluation (LOE) closing 10 Feb 05,  be  retained  in  his
records.

4.  His OPRs closing 9 Jun 04 and 9 Jun 05 be added to his personnel file.

_________________________________________________________________

STATEMENT OF FACTS:

On 3 Jul 03, after a formal hearing before the  Board,  the  Board  directed
the following corrections be made to his military record:

      a.  His nonjudicial punishment under Article 15,  UCMJ  imposed  on  6
Jan 00, be set aside and expunged from his records.

      b.  His OPRs closing 10 Feb 00 and 11 Feb  01,  be  removed  from  his
records.

      c.  His  Unfavorable  Information  File  (UIF)  be  removed  from  his
records.

      d.  He be continued on active duty effective from 31 Dec 02.

      e.  His promotion to the grade of major be reinstated.

The Board further directed that any nonselection for promotion to the  grade
of lieutenant  colonel  in-the-primary  zone  (IPZ)  prior  to  receiving  a
minimum of two Officer  Performance  Reports  with  at  least  250  days  of
supervision in the grade of major, be set aside.

For an accounting of the facts and circumstances surrounding his appeal  and
the Board's decision, see the Record of Proceedings at Exhibit K.

In his most recent submission counsel states the intention  of  the  Board's
order was to restore the applicant to a competitive position on  his  career
track by directing the Air Force in general to follow the law  and  specific
procedures with OPRs so that the applicant  could  not  be  administratively
"maneuvered" into some job position, where  he  could  not  be  promoted  to
lieutenant colonel.  At the time of the Boards order, upon reinstatement  he
would already be over three years  into  the  lieutenant  colonel  reporting
period with no OPRs as a major.  Thus it was  important  that  officials  at
Hurlburt Field immediately get his OPR file in the position  that  it  would
have been in had it not been for the misconduct of the JAG and commander.

In practical terms, Hurlburt Field officials were required to  have  written
him his first OPR commencing 2 Nov  99  and  ending  250  days  later.   The
improper OPR closing 10 Feb 02 must have been withdrawn  and  re-written  as
instructed by the Board.   Alternatively,  the  16th  MDOS  could  have  re-
written an annual OPR  of  365  days,  to  commence  the  corrective  action
ordered by the Board.  On 5 Nov 04, an OPR was created which was  back-dated
to the period of 11 Feb 02  through  10  Feb  03.   This  OPR  covered  some
unidentified period  of  189  days  before  he  in  fact  pinned  on  major.
Apparently, the intent of this OPR was to frustrate the order of  the  Board
and make certain that there would be no promotable  OPRs  in  his  personnel
record from the 16th MDOS.  The blocks in the OPR are not full and  the  OPR
was for 189 days rather than the 250 days  ordered  by  the  Board.   It  is
clearly a "faint praise" OPR intended to be an  unpromotable  OPR  with  the
result being his passing over at the lieutenant colonel promotion board.

The correction of his record meant that as  a  practical  matter,  he  could
have had an OPR of 250 days after his pin-on of major on 2 Nov 99,  plus  an
OPR 250 days following his first OPR after  advancing  to  major.   Further,
common sense required that any OPRs written on him as a captain during  that
same time frame would have to be withdrawn  from  his  file.   There  is  no
evidence that either AFPC  or  the  16th  MDOS  attempted  such  correction.
Since the selection board for lieutenant colonel meets in  the  late  spring
of each calendar year, he could have easily obtained  the  required  250-day
OPRs prior to the May 2004 or 2005 promotion  boards.   It  is  unimaginable
that the Air Force Personnel System could have  so  little  regard  for  the
applicant and Air Force directives that they would have permitted  the  void
OPR dated 5 Nov 04 to be filed in his  personnel  record  and  sent  to  the
promotion board when it was clearly void on its face (189 days).
After reassignment to MacDill AFB the 6th MDOS wrote him an OPR of 237  days
commencing just after he pinned on major in October 2003.   While  embracing
more than a calendar year, he was deployed to Iraq where he had a new  rater
which resulted in a rating period of 237 days...13 days less  than  the  250
days directed by the Board.  Coupled with the LOE from Iraq he  has  had  an
opportunity to show what he could do in the stress  of  the  combat  theatre
hospital and away from the  oppressions  of  Hurlburt  Field.   He  will  be
meeting his second in-the-zone board in the spring of 2006, and he has  been
advised  that  failing  to  be  promoted  then,  he  will  be  involuntarily
separated  six  months  after  failing  promotion.   He  will  not  get  the
promotion consideration ordered by the Board  and  meet  a  promotion  board
with OPRs that violate the Board's order.  He will again be passed over  and
improperly separated from the Air Force  due  to  circumstances  beyond  his
control and inconsistent with the instructions of the  Board.   Further,  he
now meets the promotion board in 2006 as a "passed over" major.

The only appropriate corrective action in this  case  is  for  the  BCMR  to
approve his request for a direct promotion  to  lieutenant  colonel  with  a
date of rank of May 2003 and treat his case as though he had two  successful
"promote" OPRs with a "promote"  recommendation  from  his  wing  commander.
This would make him competitive for promotion to full colonel.   Failure  to
promote him to lieutenant colonel in 2003 will mean he will again  meet  the
colonel board without a solid OPR package and will  again  be  shortchanged.
What the Board directed was to fix his file  and  put  him  back  on  career
track as if the misconduct at Hurlburt Field had  not  occurred.   This  has
not happened and cannot happen without an instant retroactive  promotion  to
lieutenant colonel.

In support of his request, applicant provided his counsel's  brief,  a  copy
of his LOE, copies of  the  contested  OPRs,  and  his  PRF.   His  complete
submission, with attachments, is at Exhibit L.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPEP recommends denial of  applicant's  request  to  insert  the  LOE
signed on 10 Feb 05 into his Officer Selection Record (OSR).  DPPPEP  states
this request is prohibited in accordance with AFI 36-2406.  The  purpose  of
an optional LOE  is  to  provide  the  rater  information  pertaining  to  a
member's  performance  during  the  time  the  member  was  not  under   the
supervision of the rater (TDY).  Once the LOE is complete,  it  is  provided
to the rater to assist with completing  the  performance  report.   In  this
case the LOE was used to accomplish his 9 Jun  05  OPR.   Specifically,  the
comments in Section IV, lines 4, 5, and 6; Section V, lines 1,2,4,5, and  6;
and Section VII, lines 1, 2, and 3 pertain to his deployment covered by  the
LOE.  Therefore, inserting the LOE would  not  only  be  against  policy  it
would also be duplicating information.

DPPPE removed the 10 Feb 00 and 10 Feb 01 OPRs from his record  as  directed
by the AFBCMR.  However, DPPPE failed to insert an AF Form 77 to  cover  the
period of time the applicant was not  on  active  duty  (normally  the  time
frame is from the close-out of the last report thru the  day  prior  to  the
member's date arrived station to his new base).  The ERAB  agrees  with  the
applicant concerning his contention that the  10  Feb  03  OPR  was  written
unjustly since he was not on active duty at the time and the 10 Feb  02  OPR
is filed as a captain's report when it should  reflect  major.   Corrections
have been made to his record.  The AF Forms 77 for the 1 Feb 00  and  1  Feb
01 reports were reaccomplished to reflect major,  the  10  Feb  03  OPR  was
removed from his OSR, and an AF Form 77 was inserted in its place  to  cover
the period he was not on active duty.  The 9 Jun 04  OPR  was  corrected  to
reflect a "from" date of 16 Oct 03.

The 9 Jun 04 and 9 Jun 05 OPRS were filed in his OSR on 5 Jul 05 and 16  Nov
05, respectively.  No action is required to file these OPRs  in  his  record
since they are already in his record.

It seems the applicant is misreading the AFBCMR's directive as if he  should
not  have  any  OPRs  completed  on  him  without  the  250-day  supervision
requirement.  This is not true.  The statement in the directive pertains  to
his nonselection status.  He will continue to receive OPRs  as  required  by
AFI  36-2406.   However,  if  he  is  eligible  for  a  promotion  board  to
lieutenant colonel and is not selected for promotion and does not  have  two
OPRs with at least 250 days of supervision, then  the  nonselection  is  set
aside (not the OPRs as interpreted by the applicant).  This  means  he  will
meet the next promotion board as IPZ and  his  last  nonselection  will  not
count against him.

The complete DPPPEP evaluation is at Exhibit M.

AFPC/DPPPO states the intent of the directive issued by the  AFBCMR  was  to
allow the applicant time to build a competitive record.   By  law,  he  must
meet promotion boards if he is eligible and he  continues  to  be  eligible.
The intent is not to direct OPRs with  250  days  supervision  nor  that  he
should not meet promotion boards.  DPPPO continually monitors this  type  of
case and if the applicant is not selected and does not have  two  OPRs  with
at least 250 days supervision, the nonselections are removed  and  the  next
board is built as IPZ eligible.   He  has  met  the  CY04,  CY05,  and  CY06
lieutenant boards as an IPZ eligible and the directive has been followed  as
required.

The complete DPPPO evaluation is at Exhibit N.

AFPC/JA concurs with the evaluations of DPPPO and  DPPPEP  and  agrees  that
the corrections made by the ERAB are sufficient to correct  whatever  errors
remained after the Board's previous  correction.   JA  states  as  noted  by
DPPPEP the LOE is not a stand alone document to be inserted in  the  OSR  in
accordance with AFI 36-2406.  Moreover, as required  by  the  directive  the
essence of the LOE is included in his 9 Jun 05 OPR.  It is  clear  that  his
counsel has misinterpreted the Director's order that followed  the  previous
AFBCMR decision.  That order states that any nonselection for  promotion  to
the grade of lieutenant colonel in the primary zone prior to  the  applicant
receiving a minimum of two OPRs with at least 250 days of  supervision  will
be set aside.  The order does not, however, require that any or all  reports
written must reflect at least 250 days of supervision.  DPPPO has  carefully
monitored the nonselections to lieutenant colonel received by the  applicant
to ensure they were set aside if he had not  yet  obtained  two  OPRs  as  a
major with at least 250 days of supervision and they  will  continue  to  do
so.  The Air Force has correctly followed the  mandates  of  the  Director's
order.

Counsel also seems to suggest that having any personnel  at  Hurlburt  Field
write an OPR on the applicant subsequent to the  Board  order  violates  the
spirit  of  the  Board's  intent  to  have  him  freed  of  the  prejudicial
environment that existed at that base.   Nowhere  in  that  order  does  the
Board state that personnel at Hurlburt should be precluded from writing  any
corrected  or  future  OPRs  on  the  applicant.   Rather,  what  the  Board
typically  requires  in  this  type  of  circumstance  is  that  the  record
accurately reflect his actual service in the Air Force, taking into  account
the corrections made  by  the  Board.   As  a  result  of  the  most  recent
corrections made by the ERAB his record does contain  a  true  portrayal  of
his performance in the correct grade-and this is the  proper  obligation  of
the Air Force within the requirements  of  the  directive  and  the  Board's
order.  Moreover, the request for direct  promotion  to  lieutenant  colonel
should likewise  be  denied.   The  AFBCMR  in  its  previous  decision,  as
implemented through the order of the director, has  made  clear  its  intent
that he be given a fair chance for  selection  to  lieutenant  colonel.   In
addition, the statutory and regulatory scheme for promotion favors  the  use
of promotion boards to  determine  when  an  officer  is  among  those  best
qualified for promotion to the next higher grade and that  direct  promotion
should only  be  used  in  the  most  extraordinary  circumstances  where  a
promotion board process is found to be unworkable.

The complete JA evaluation is at Exhibit O.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Counsel reiterated the events that led to the applicant's  original  request
for correction of his military records and states that the  Board  corrected
his record to purge his record of a multitude of criminal abuses by a  lying
civilian  nurse  who  made  a  false  complaint,  to  purge  his  record  of
incompetent responses, and to purge his record of collusion  in  an  abusive
legal investigation by an unauthorized party.  The BCMR  clearly  recognized
the cards were stacked against the applicant at Hurlburt Field knowing  they
had unclean hands.  The Board wanted him to have a fair chance  to  compete,
and their criteria was to have two OPRs with  250  days  of  supervision  by
unbiased reporters, before he met the next promotion board.   The  applicant
went to another base and  to  Iraq  where  he  has  performed  sterling  and
typical Air Force work.  His OPR pattern has not  followed  that  which  was
directed by the Board.  The Board instructions were clear and the Air  Force
elected not to follow them and rely  upon  a  series  of  technicalities  to
explain why they  would  not  follow  the  BCMR  instructions  to  make  him
competitive for promotion to lieutenant  colonel.   It  is  clear  from  his
botched up record  that  he  would  never  make  lieutenant  colonel  early.
Therefore, if the BCMR does not promote him directly, it is certain he  will
not get promoted by the Air Force.  The argument that his case  is  not  one
that requires direct promotion because the Air Force system  is  working  is
the same argument used when he was illegally struck  from  the  major  list,
falsely charged, given an illegal Article 15, sent him  to  a  psychiatrist,
attempted to steal his credentials, passed him over, and kicked him  out  of
the Air Force.  It is clear that the BCMR expected  that  he  would  get  to
compete for lieutenant colonel and be considered  for  and  most  likely  be
promoted in the primary zone.  It has not happened and will not happen  with
the OPR file that the Air Force has constructed for him.

Counsel's complete response is at Exhibit Q.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice warranting a degree  of  corrective  action.
Counsel requests multiple corrections be made to  the  applicant's  records.
In addition to the multiple errors counsel contends  are  contained  in  the
applicant's records counsel believes the previous  directive  of  the  Board
required an OPR be written on the applicant commencing  250  days  following
applicant's promotion to the grade of major  and  another  OPR  written  250
days later.  Such is not the  case.   We  agree  with  the  Air  Force  that
counsel has  misinterpreted  the  intent  of  the  Board's  directive.   The
previous directive clearly states that any nonselections  for  promotion  to
the  grade  of  lieutenant  colonel,  in-the-primary  zone,  prior  to   the
applicant receiving a minimum  of  two  OPRs  with  at  least  250  days  of
supervision, in the grade of major, will be set aside.  The intent  of  this
instruction was not as suggested  by  counsel  but  in  recognizing  that  a
retroactive promotion to a  higher  grade  causes  an  applicant  to  become
eligible for promotion to the next grade prior to having an  opportunity  to
build a record of performance.  The Board believes such action  will  permit
the applicant to take the  necessary  actions  (i.e.,  build  a  competitive
record, get AFPC to reflect necessary corrections to  his  record,  and  get
appropriate PME  for  next  grade,  etc.)  to  become  competitive  when  he
competes for promotion to the next higher grade in the future.

2.  Regarding counsel's request that the applicant's OPRs closing 10 Feb  02
and 10 Feb 03 be removed from  his  records,  we  note  that  the  ERAB  has
previously removed the 10 Feb 03  report  and  has  made  an  administrative
correction to the 10 Feb 02 report.  However, after  a  thorough  review  of
the evidence before us, it is our opinion that the 10 Feb 02  report  is  an
inaccurate depiction of the applicant's promotion potential  and  should  be
removed from his records as well.  In this respect, during the  time  period
in question, the applicant's selection for promotion to the grade  of  major
had been withdrawn and he was  placed  into  a  position  in  which  he  was
relinquished to performing the duties  of  those  of  a  captain.   Previous
direction of this Board reversed the  decision  to  withdraw  his  promotion
selection to major.  In addition, the administrative correction  to  his  10
Feb 02 OPR changed the grade reflected on the report from captain to  major,
which in our opinion, gives the appearance of a major performing the  duties
of a captain.  Thus, we believe the 10 Feb 02 OPR is unjust  and  should  be
removed from his records.

3.  Counsel requests the applicant's OPRs closing 9 Jun 04 and 9 Jun  05  be
included  in  his  selection  record.   The  Air  Force  states  that  those
particular reports were previously filed in the applicant's record on 5  Jul
05 and 16 Nov 05, respectively and no further action is  warranted.   We  do
not entirely agree with the Air Force's position.  The  9  Jun  05  OPR  was
signed by the rater and by the additional rater on 22 Jun  05,  and  by  the
reviewer on 28 Jun 05.  The CY05 promotion board convened on  6 Jul  05  and
according to the Air Force, the  9  Jun  05  OPR  was  not  filed  into  the
applicant's OSR until 16 Nov 05.  Therefore, it appears the OPR was  not  on
file in his CY05 OSR when his record was  considered.   Accordingly,  it  is
our determination that his record should be corrected to show the 9  Jun  05
OPR was accepted for file prior to the convening of the CY05  board  and  he
should receive Special Selection Board (SSB) consideration.

4.  Regarding counsel's request that the applicant's 10 Feb 05 LOE  prepared
after his service in Iraq be retained in his record, we agree with  the  Air
Force that the LOE was appropriately used in the preparation of  his  9  Jun
05 in accordance with the  governing  instruction,  and  that  no  error  or
injustice exists with respect to the processing and disposition of the  LOE.


5.  Counsel further contends that the only appropriate corrective action  to
be taken in this case is to directly promote the applicant to the  grade  of
lieutenant colonel.  While the applicant's  record  that  met  the  previous
selection boards contained errors, we are not persuaded direct promotion  is
warranted in this case.  In our view, a direct promotion should  be  granted
only under extraordinary circumstances; i.e.,  a  strong  showing  that  the
officer's record cannot be reconstructed in such a manner so  as  to  permit
competing for promotion on a fair and  equitable  basis.   We  are  not  yet
convinced that such is the case.  Noting that the applicant's  nonselections
for promotion have been removed and he remains in-the-primary zone for  what
at this point may be two more considerations, we believe granting  a  direct
promotion would be unfair to his contemporaries who  compete  for  promotion
annually, but, even though  they  may  be  qualified,  in  the  judgment  of
selection board members vested with discretionary authority, may not be  the
best qualified for the limited number of promotion  vacancies.   We  believe
that  SSB  consideration  with  the  above  corrections   along   with   the
applicant's exercising of due diligence in  ensuring  the  accuracy  of  his
records remains the appropriate and equitable solution.  Accordingly, it  is
our recommendation that the applicant's record, with the  above  corrections
be placed before  SSBs  and  that  he  be  provided  supplemental  promotion
consideration for the CY05 and CY06  lieutenant  colonel  selection  boards.
We realize that the 10 Feb 02 and 10 Feb 03 OPRs were  present  in  his  OSR
when the CY04 board convened; however, since removal  of  those  OPRs  would
result in what we believe to be a non-competitive record, SSB  consideration
for that board would be futile.  Therefore,  it  is  our  opinion  that  his
records should be corrected to the extent below.

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 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  11  February  2001  through  10 February  2002,  be
declared void and removed from his records.

b.  The OPR rendered for the period 10 June 2004 through  9  Jun  2005,  was
accepted for file in his Officer Selection Record on 5 July 2005.

It is further recommended  that  the  corrected  record  be  considered  for
promotion to the grade of lieutenant colonel by a  Special  Selection  Board
for the Calendar Year 2005A  (CY05A)  and  CY06A  Biomedical  Science  Corps
Lieutenant Colonel Central Selection Boards.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2002-
02532 in Executive Session on 15 Aug 06, under the  provisions  of  AFI  36-
2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. Michael J. Novel, Member
      Ms. Renee M. Collier, Member

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

    Exhibit K.  Record of Proceedings, dated 3 Jul 03, w/Exhibits.
    Exhibit L.  Letter, Counsel, dated 12 Jan 06, w/atchs.
    Exhibit M.  Letter, AFPC/DPPPEP, dated 9 Mar 06, w/atchs.
    Exhibit N.  Letter, AFPC/DPPPO, dated 16 Mar 06.
    Exhibit O.  Letter, AFPC/JA, dated 29 Mar 06.
    Exhibit P.  Letter, SAF/MRBR, dated 31 Mar 06.
    Exhibit Q.  Letter, Counsel, dated 28 Apr 06




                             CHARLENE M. BRADLEY
                             Panel Chair


AFBCMR BC-2002-02532




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:

            a.  The Field Grade Officer Performance Report (OPR), AF Form
707A, rendered for the period 11 February 2001 through 10 February 2002,
be, and hereby is, declared void and removed from his records.

            b.  The OPR rendered for the period 10 June 2004 through 9 Jun
2005, be, and hereby is, accepted for file in his Officer Selection Record
on 5 July 2005.

      It is further directed that the corrected record be considered for
promotion to the grade of lieutenant colonel by a Special Selection Board
for the Calendar Year 2005A (CY05A) and CY06A Biomedical Science Corps
Lieutenant Colonel Central Selection Boards.




                                       JOE G. LINEBERGER
                                       Director
                                       Air Force Review Boards Agency



AFBCMR BC-2002-02532

MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
                   MILITARY RECORDS (AFBCMR)

SUBJECT:    AFBCMR Application of

      I have carefully reviewed all of the circumstances of the applicant’s
case and I wholeheartedly agree with the Board's recommendation to grant
relief.  However, because of the reasons hereinafter stated I believe
further relief than that recommended by the Board is appropriate.

      In previous consideration of this case it was directed that any
nonselection for promotion to the grade of lieutenant colonel in-the-
primary zone prior to receiving a minimum of two Officer Performance
Reports (OPR) with at least 250 days of supervision, in the grade of major
be set aside.  However, due to a recent policy change the requirement for a
minimum of two OPRs with at least 250 days of supervision in the current
grade was increased to three.  In light of this change in policy and in
order to ensure the applicant receives fair and equitable treatment, I
believe he should be receive the same benefit.



      Accordingly, it is my decision that in addition to the recommended
corrections I direct his records be further corrected to show that any
nonselections for promotion to the grade of lieutenant colonel in-the-
primary zone prior to receiving a minimum of three OPRs with at least 250
days of supervision, in the grade of major be set aside.









                                  JOE G. LINEBERGER
                                  Director
      Air Force Review Boards Agency