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AF | BCMR | CY2006 | BC-2006-01016
Original file (BC-2006-01016.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01016
            INDEX CODE:  131.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY COMPLETION DATE:  6 AUGUST 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be directly promoted to the grade of Lt Colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Two years ago, while going through his military documents, he discovered  he
had been denied  promotion  to  Lt  Col  because  of  his  base  commander’s
original endorsement to his OER.

Upon his return from two combat tours in  Vietnam  (1966  &  1967),  he  was
assigned duties  in  the  Netherlands  as  the  services  deputy  commander.
During his tour, there was a major aircraft accident involving an  F-4  jet.
He was not involved, but his base commander downgraded his  OER  because  he
was on the staff of the local commander.

By  the  time  he  realized  his  Officer  Effectiveness  Report  (OER)  was
downgraded, his base commander had been reassigned to  Pakistan.   He  wrote
his former base commander  and  explained  the  situation.   He  received  a
corrected statement; however, by that time the promotion board  had  already
met.

He would like the Board to review his entire service record and promote  him
to Lt Col from the date he would have been selected.

In  support  of  the  application,  the  applicant  submits   his   personal
statement, a copy of his DD 214, a copy of the contested OER, and a copy  of
his  former  base   commander’s   statement.    The   applicant's   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

During the period in question, the applicant  was  serving  as  a  major  on
extended active duty with a date  of  rank  of  9  December  1969.   He  was
relieved from active duty service and retired on 1 September 1975.   He  had
served 27 years, 6 months and 22 days on active duty service.

The following is a resume of his last seven  Officer  Effectiveness  Reports
(OERs) commencing with the report ending 7 Jul 69:

 PERIOD ENDING   PROMOTION POTENTIAL

      7 Jul 69         3
*16 Mar 70       3
 14 Sep 70       3
 14 Sep 71       4
 14 Sep 72       4
 14 Sep 73       4
 16 Aug 74       4

*Corrected Report.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate offices of the Air Force at Exhibits C & D.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPO recommends denial.  DPPPO states the application is  untimely.
 DPPPO notes although the applicant contends he did not discover  the  error
until 20 Aug 04, the correct OER has been on file  since  23  Jun  72.   The
applicant met and was nonselected for promotion by the  following  Temporary
Lieutenant Colonel Boards:  T05 FY72 (26 Jul 71), T05 FY73 (17 Jul 72),  T05
FY74 (26 Mar 73), T05, FY75 (22 Apr 74) and T05 FY76 (27 Jan 75).

DPPPO states their review  of  the  applicant’s  records  reveals  that  the
corrected OER was filed in the selection folder on  23  Jun  72,  after  the
FY72 Lt Col board convened, but it was on file  for  the  remainder  of  the
boards the applicant met.  DPPPO notes the applicant has  not  provided  any
documentation to support his claim that he was denied promotion  because  of
the uncorrected report.  In addition, the corrected OER did  meet  the  next
four promotion boards and he was again nonselected for promotion, so  it  is
highly probable that the applicant was aware of  the  corrected  report  and
could  have  requested  supplemental  consideration  in  1972   or   anytime
thereafter.   Unfortunately,  because  of  the  delay  in  the   applicant’s
appealing his nonselection, not  all  records  are  available  to  determine
whether the applicant ever received supplemental consideration based on  the
corrected report.

DPPPO states the application may be dismissed under the  equitable  doctrine
of laches, which denies relief to one who has unreasonably  and  inexcusably
delayed in asserting claim.  This unreasonable delay  has  caused  prejudice
to the Air Force, as all relevant records are not available for review.   In
addition, the economic impact to  the  government  is  unreasonable  as  the
applicant would be eligible for back pay of  the  difference  between  major
and lieutenant colonel pay over a 30+ year period.

The complete evaluation is at Exhibit C.

HQ AFPC/JA concurred with the findings and  recommendations  by  DPPPO,  and
recommends the application be denied as untimely.  JA states  the  applicant
has failed to exercise the due diligence required by law and as a result  of
his lengthy delay, probative  evidence  is  no  longer  available  to  fully
assess the merits of his claim.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response dated June 8, 2006, the applicant  disagreed  with  the  Air
Force findings and recommendations.   He  states  he  honorably  served  his
country for 28 years and 6 months.  He affirms prior to  this  incident,  he
served two combat tours as a volunteer  in  Vietnam  and  received  numerous
awards.  He opines a bad  endorsement  for  his  outstanding  OER  from  his
commanding officer was a kiss of  death  to  his  career  as  an  Air  Force
officer.  He believes he could meet  50  promotion  boards  and  the  result
would be the same – no promotion.  He agrees that he knew  about  this  case
before 2004.

He states that his promotion would impact economically on his back  pay  for
30 years.  Presently, he works as a volunteer mediator without any  fees  or
pay attachment.  Prior to this position, he was a volunteer for  five  years
for the local golf tournament, also without pay.   Prior  to  that,  he  was
instrumental in starting up a charity called  Kid’s  Fair,  sponsored  by  a
local community center.

He notes that  in  1965,  he  voluntarily  attended  airborne  training  and
successfully completed this course.  One of his classmates  in  this  course
later became a lieutenant general and commander.  He paid  for  this  course
out of his own pocket to enhance his value to the Air  Force  prior  to  his
tours in Vietnam.

He requests justice with our without compensation.

The applicant’s complete response is at Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error  or  injustice.   We  note  the  applicant’s  contentions
concerning the corrected statement on his  OER;  however,  we  do  not  find
these uncorroborated assertions  sufficiently  persuasive  to  override  the
rationale provided by the primary office of responsibility (HQ  AFPC/DPPPO).
 Therefore, in  the  absence  of  evidence  to  the  contrary,  we  find  no
compelling  basis  to  recommend  granting  the  relief   sought   in   this
application.

________________________________________________________________

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  BC-2006-01016  in
Executive Session on 13 July 2006, under the provisions of AFI 36-2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Ms. Jan Mulligan, Member
                 Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 29 Mar 06 w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, HQ AFPC/DPPPO, dated 16 May 06.
      Exhibit D.  Letter, HQ AFPC/JA, dated 24 May 06.
      Exhibit E.  Letter, SAF/MRBR, dated 2 Jun 06.
      Exhibit F.  Letter, Applicant, 8 Jun 06.



                                   RICHARD A. PETERSON
                                   Panel Chair

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