RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-01217
                                             INDEX CODE:  100.00
                                             COUNSEL:  MR. HERNANDEZ

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  21 July 2007


________________________________________________________________

APPLICANT REQUESTS THAT:

The Field Grade Officer Performance Record  (OPR),  rendered  for  the
period 1 August 2001 through 19 December 2001, be  declared  void  and
removed from his records, or in the alternative; the report be amended
by upgrading the performance factor ratings of professional  qualities
and judgment and decisions; and removing the rater’s comment,  “During
leave status entered home of ex-wife and was  arrested  for  burglary,
petty  theft,  criminal  mischief.   Manning  assistance  cut   short;
demonstrated poor judgment in his actions; removed as Flt Commander.”

________________________________________________________________

APPLICANT CONTENDS THAT:

The rater lacked substantial evidence to make the comments and  relied
on his bitter ex-wife’s  self-serving  statements  obtained  during  a
personal conversation.  However, the rater failed to consider his  ex-
wife’s history of mental illness, to include depression.  In addition,
the  rater’s  statement  draws  the  erroneous  conclusion   that   he
[applicant] was convicted of the alleged charges.   At  the  time  the
report was rendered, a formal investigation had not been conducted and
the voracity of his ex-wife’s statements had not been determined.

In support of the appeal, applicant submits a copy  of  the  contested
report and his referral comments.

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant is  currently  serving  on  active  duty  in  the  grade  of
lieutenant colonel.  On  19  December  2001,  the  Evaluation  Reports
Appeal Board (ERAB) considered and denied  his  request  to  void  the
report.

Resume  of  applicant’s  performance  profile,  since  30  June  1997,
follows:

      PERIOD ENDING               EVALUATION OF POTENTIAL

       30 Jun 97               Meets Standards (MS)
       24 Apr 98                       MS
       30 Jun 99               Training Report (TR)
       31 Jul 01                       MS
     * 19 Dec 01 (Referral)    MS on all factors, except
                               Professional Qualities and
                                  Judgment and Decisions
       27 Sep 02                       MS
       10 Jun 03                       MS
       10 Jul 04                       MS

* Contested Report and top report reviewed by the Calendar Year  2004A
(CY04A) Central Lieutenant Colonel Selection Board.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPP recommends the application be denied and  states,  in  part,
that the comments are accurate and  permissible  based  on  the  facts
which were known to the rater at the time the  report  was  originally
prepared.  Specifically, that applicant was, in fact, arrested for the
offenses listed in the contested  OPR.   A  report  is  considered  an
accurate assessment  when  rendered,  unless  proven  otherwise.   The
applicant provides no substantial documentation negating the  validity
of the rater’s comments/ratings.

The AFPC/DPPP evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was  forwarded  to  the  applicant’s
counsel on 6 May 2005, for review and comments, within 30 days.  On 23
August 2005, the application was temporarily withdrawn by counsel.  In
a letter, dated 17  April  2006,  applicant’s  counsel  requested  the
application be reopened.  Counsel further contends the use of the term
“burglary” was impermissible considering  the  investigation  had  not
been completed.  The charges were subsequently dropped to  misdemeanor
status and not a burglary felony.  As such, the rater should not  have
mentioned the felony charge of burglary until the  conclusion  of  the
investigation.

Counsel’s complete response, with attachment, is at Exhibit G.

_______________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice  to  warrant  amending  the  contested
report to remove the word “burglary.”  In this respect, we  note  that
during the rating period of the contested report,  the  applicant  was
arrested for burglary, petty  theft,  and  criminal  mischief,  for  a
domestic incident involving his ex-wife’s residence.  The charges were
subsequently dropped from burglary felony to misdemeanor  status.   In
view of this, we find the reference to the felony charge  of  burglary
is inappropriate.  However, since the rater’s comments were  otherwise
accurate and permissible based on the facts which were known by him at
the time the report was originally  prepared  and  the  applicant  has
provide no evidence to the contrary, we find no basis  upon  which  to
recommend favorable consideration of his request to void the report in
its entirety or  upgrade  the  front  side  markings  of  the  report.
Therefore, we  recommend  his  records  be  corrected  to  the  extent
indicated below.

4.  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  issue(s)   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  Field  Grade
Officer Performance Report, AF Form  707A,  rendered  for  the  period
1 August 2001 through 19 December 2001, be,  amended  in  Section  VI,
Rater Overall Assessment, by  deleting  the  sentence,  “During  leave
status entered home of ex-wife and was arrested  for  burglary,  petty
theft, criminal mischief,” and replacing with,  “During  leave  status
entered home of ex-wife and was arrested  for  petty  theft,  criminal
mischief”.

________________________________________________________________







The following members of the Board considered AFBCMR Docket Number BC-
2005-01217 in Executive Session on 17 May 2006, under  the  provisions
of AFI 36-2603:

            Mr. Michael J. Maglio, Panel Chair
            Mr. Grover L. Dunn, Member
            Ms. Debra Walker, Member


All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence pertaining to AFBCMR Docket Number  BC-
2005-01217 was considered:

     Exhibit A.  DD Form 149, dated 22 Mar 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPP, dated 2 May 05.
     Exhibit D.  Letter, SAF/MRBR, dated 6 May 05.
     Exhibit E.  Letter Counsel, dated 27 May 05.
     Exhibit F.  Letter, AFBCMR, dated 23 Aug 05.
     Exhibit G.  Letter, Counsel, dated 17 Apr 06, w/atch.




                                   MICHAEL J. MAGLIO
                                   Panel Chair




AFBCMR BC-2005-01217




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 Field Grade
Officer Performance Report, AF Form 707A, rendered for the period
1 August 2001 through 19 December 2001, be, and hereby is, amended in
Section VI, Rater Overall Assessment, by deleting the sentence,
“During leave status entered home of ex-wife and was arrested for
burglary, petty theft, criminal mischief,” and replacing with, “During
leave status entered home of ex-wife and was arrested for petty theft,
criminal mischief”.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency