RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-00977
            INDEX CODE:  131.09
XXXXXXXXXXXXX    COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  24 SEP 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to the rank of Major General (O-8) retroactive to 1 Jun 03.
_________________________________________________________________


APPLICANT CONTENDS THAT:

He met the selection board for promotion to  Major  General  with  a  Senior
Officer Unfavorable Information File (SOUIF) as a result of  an  Article  15
received.  The Air Force Board for Correction of Military  Records  (AFBCMR)
has since declared the Article 15 void and  ordered  it  expunged  from  his
record.  His contemporaries were promoted to Major  General  with  dates  of
rank on or about 1 Jun 03; therefore, he requests  a  promotion  retroactive
to that date (with retirement as an O-8 effective 31 Jan  04).  A  promotion
to Major General, retroactive to the date he would have  been  promoted  but
for the erroneous Article  15  and  SOUIF,  will  restore  all  the  rights,
privileges, and property of which he was deprived because of  the  error  or
injustice.

In support of his request, the applicant provided a
DD Form 149, personal memorandum, Dec 04/Jan 05  AFBCMR  &  DFAS  documents,
Sep 05 AFBCMR documents, and an AF Form 78.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from  the  personnel  data  system  reveals  that  the
applicant was appointed a Second Lieutenant, Reserve of the Air Force  on  6
Feb 73 and was voluntarily ordered to extended  active  duty  on  that  same
date.  He was progressively promoted to  the  grade  of  Brigadier  General,
having assumed that grade effective and with a date of rank of 1 Jan 00.

In Oct 02, the applicant received an Article  15  for  dereliction  of  duty
related to the unauthorized receipt of  Combat  Zone  Tax  Exclusion  (CZTE)
benefits during temporary duty travels in Turkey from  Apr  00  to  Jun  01.
The applicant paid the Internal Revenue Service $24,695.00.

On 16 Dec 04, the AFBCMR decided the applicant had been a victim  of  either
an error or an injustice and directed the applicant’s  military  records  be
corrected to show that he was in a temporary duty status and was paid  total
per diem (CZTE) in the amount of $24,695.00.

On 9 Sep 05, the AFBCMR directed that the applicant’s  military  records  be
corrected  to  show  that  the  nonjudicial  punishment  imposed  under  the
provision of Article 15, initiated on
11 Sep 02, and imposed on 21 Oct 02, be declared void and expunged from  the
applicant’s records.

The applicant met the  CY01,  CY02,  and  CY03  promotion  boards  to  Major
General.  The SOUIF was not present for the CY01 and CY02 boards.   However,
the SOUIF was present for the CY03 promotion board.
_________________________________________________________________

AIR FORCE EVALUATION:

The AF/DPG recommends the AFBCMR deny XXXXXX request  for  direct  promotion
and do not support supplemental promotion consideration.

XXXXX had the opportunity to meet the CY01, CY02, and CY03 promotion  boards
to Major General and was not selected.  There are no  direct  promotions  to
Major General; therefore, XXXXX records would have to  meet  a  supplemental
board.  Historically, promotions have not been nor  are  they  now  used  to
honor or reward people for their achievements and  accomplishments;  rather,
officers are promoted due to potential to serve at a particular grade.

The HQ AF/DPG complete evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the  Air  Force  evaluation  applicant  states  that  his
request for promotion to major general is the  final  step  to  correct  the
error and injustice  he  suffered  while  on  active  duty.   The  applicant
references two previous actions taken by the Board to correct the error  and
injustice.  The applicant provides a short summary of his career since  2001
when he was first eligible for consideration to the grade of major  general.
 He notes  as  a  result  of  an  IG  investigation  in  2001,  he  received
nonjudicial punishment in 2002.  He states his  most  realistic  opportunity
for promotion to major general was in 2003.  He bases his conclusion on  his
personal knowledge and a review of the biographies of  his  peers  who  were
promoted with him to the grade of brigadier general in 2000  and  then  went
on to be selected for promotion to major general in 2003.  As  a  result  of
the Air Force IG’s erroneous findings,  his  records  were  flagged  with  a
SOUIF when he was considered for promotion in 2002 and 2003.  The Air  Force
took corrective action to remove the stain of the financial penalty and  the
nonjudicial punishment from his  records,  but  it  has  not  addressed  the
impact the SOUIF had on  his  ability  to  receive  fair  consideration  for
promotion.  In this regard, the evaluation by AF/DPG completely ignores  the
central point the Board must address.

AF/DPG contends the only way he can be promoted is  through  a  supplemental
promotion board.  The problem with that approach is  that  taking  away  the
SOUIF does not  erase  the  permanent  stain  left  behind  on  his  record.
Applicant  states  that  no  one  would  argue  that   a   senior   officer,
particularly in the general officer ranks, who  is  flagged  for  misconduct
receives the same opportunities and the same considerations as  his  or  her
peers with clean records.  The applicant further indicates it would be  pure
speculation to plot the path his career would have taken if he had not  been
wrongly flagged for  misconduct,  but  it  is  certain  that  being  falsely
labeled altered that path.   Simply  removing  the  SOUIF  and  putting  his
record up against his peers as their records looked back in  2002  and  2003
is not a level playing field that gives him a fair chance to  compete.   The
applicant opines that the only way to correct the error and  this  injustice
he has suffered is to correct his records to  reflect  he  was  promoted  to
major general in 2003 and retired in that grade effective 1 Feb 04.

Applicant’s complete response, with attachments is at Exhibit E.

_________________________________________________________________


THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice warranting the applicant’s direct  promotion
to the grade of major general.  We do  not  necessarily  disagree  with  the
applicant’s assertions that he may not be able to fairly compete on a  level
playing field and that the subsequent acknowledgement of his  innocence  did
not “turn back the clock.”  However, as noted  by  the  applicant,  not  all
considerees by the CY01 through CY03  selection  boards  were  selected  for
promotion to major general.  More significantly, however,  officers  compete
for promotion under the whole person concept whereby a multitude of  factors
are carefully assessed by selection board members.  In addition, an  officer
may be qualified for promotion, but, in  the  judgment  of  selection  board
members - vested with discretionary authority to score the record – may  not
be the  best  qualified  of  those  available  for  the  limited  number  of
promotion vacancies.  Consequently,  a  duly  constituted  selection  board,
applying the  complete  promotion  criteria  is  in  the  most  advantageous
position to make this crucial determination and its  prerogative  to  do  so
should only be usurped under extraordinary circumstances.


4.  In cases such as this one, we realize that in many instances  we  cannot
make the  individual  completely  whole.   Thus,  our  goal  is  to  provide
substantial equity.  An earlier action of the Board resulted in  removal  of
the adverse actions that led to the SOUIF being before  the  CY03  selection
board, and reimbursed him  for  the  thousands  of  dollars  that  had  been
erroneously recouped.  These actions, in our view,  constitute  the  maximum
relief warranted based on the applicant’s request and the  totality  of  the
evidence submitted.  Having said this, however, since the applicant  appears
to have been deprived of fair promotion consideration by the CY03  selection
board, we would not be predisposed against granting him reconsideration  for
promotion by a duly constituted  special  selection  board  if  he  were  to
timely request such action in future.

5.  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  involved.   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 AFBCMR Docket Number  BC-2006-
00977 in Executive Session on 14 November 2006, under the provisions of  AFI
36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Ms. Mary C. Puckett, Member
      Ms. Kathleen F. Graham, Member



The following documentary evidence was considered for AFBCMR Docket
Number BC-2006-00977 in Executive  Session  on  14  November  2006,
under the provisions of AFI 36-3603:

    Exhibit A.  DD Form 149, dated 24 Mar 06.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AF/DPG, dated 22 Sep 06.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Oct 06.
    Exhibit E.  Letter, Applicant, dated 31 Oct 06.




                                   LAURENCE M. GRONER
                                   Panel Chair

AIR FORCE BOARD FOR CORRECTION
OF MILITARY RECORDS

CASE TRANSMITTAL / COORDINATION RECORD


IN THE MATTER OF:      DOCKET NO:

XXXXXXX     BC-2006-00977


ROUTE IN TURN    INITIALS  DATE


1.  CHIEF EXAMINER     ________  ________
    (Coord/Signature)

3.  EXECUTIVE DIRECTOR ________  ________
    (Coordination)

3.  EXAMINER (FOR DISPATCH)  ________  ________

4.  Mr. Laurence M. Groner
    PANEL CHAIR
    (Signature on Proceedings)    ________  ________

5.  AFBCMR (Processing)





                                 LATRESE M. TAYLOR
                                 Examiner
                                 Air Force Board for Correction
                                 of Military Records
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


                                  DATE:  14 Nov 06

MEMBERS PRESENT:


      Mr. Laurence M. Groner, Panel Chair
      Ms. Mary C. Puckett, Member
      Ms. Kathleen F. Graham, Member


TYPE OF MEETING: FORMAL  _____    EXECUTIVE SESSION X

EXAMINER:  LaTrese M. Taylor

APPLICANT:  XXXXXXXX

DOCKET NUMBER:  BC-2006-00977     CASE NO:01


                                                  CODE:  _____


DECISION OF THE BOARD:_____________________________________________

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

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RATIONALE:_________________________________________________________

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___________________________________________________________________

___________________________________________________________________

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                       ___________________________________
                       EXAMINER



AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB MD  20762-7002

XXXXXXX
XXXXXXX
XXXXXXX, XXXX

Dear XXXXX
      Reference your application submitted under the provisions of  AFI  36-
2603 (Section 1552, 10 USC), AFBCMR BC-2006-00977.


      After careful consideration of your application and military  records,
the Board determined that the evidence you  presented  did  not  demonstrate
the existence of error or injustice.  Accordingly,  the  Board  denied  your
application.


      You have the right to submit newly discovered  relevant  evidence  for
consideration by the Board.  In the absence of such additional  evidence,  a
further review of your application is not possible.


      BY DIRECTION OF THE PANEL CHAIR





                                       ALGIE WALKER, JR.
                                       Chief Examiner
                                       Air    Force    Board    for
                                       Correction
                                       of Military Records

Attachment:
Record of Board Proceedings