RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  BC-2007-02328
                                  INDEX CODE:  131.00
    XXXXXXXXXXXXXXXXXX       COUNSEL:  GEORGE E. DAY
                                  HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be given immediate promotion to lieutenant colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 30 Nov 99, he separated from active duty and returned to active  duty  on
1 May 02 in the grade of captain.  On 1 Sep 04, he was notified  that  while
on Inactive Ready Reserve status, he was promoted  to  major  by  a  Reserve
Special Selection Board (SSB) with a date of rank (DOR) of 16 Jun 01 and  an
effective date of 1 May 02.  As a captain, he was not allowed to  enroll  in
Air Command and Staff college classes or hold the duty  positions  that  are
the basis for promotion.  His annual Officer Performance  Report  (OPR)  was
due just days after notification  and  the  rank  was  simply  changed  from
captain to major.  He met the in-the-primary-zone (IPZ)  lieutenant  colonel
board with a captain’s OPR and  was  non-selected.   He  requested  and  was
granted the removal of that non-selection.  He was non-selected by the  CY06
board and was again granted removal of that  non-selection.   Expunging  the
non-selections does not correct the  error  since  their  removal  does  not
erase his DOR or the discrepancies between his DOR  and  the  dates/rank  on
his OPR.  He is currently meeting boards that are considering majors in  the
2003-year  group.   This  error  has  affected  his  career   opportunities,
subsequent promotions, active duty  compensation,  retirement  benefits  and
his lifetime financial earnings.

The applicant’s counsel outlines the applicant’s career  and  summarizes  by
stating that as of July 2007, the applicant has over 20 years  total  active
and reserve military service.  He will have three  actual  years  in  grade,
following notification of promotion to major  in  September  2004.   Counsel
states it is impossible to reconstruct the  applicant’s  OPR  file  in  some
fashion that can get him to a Special Selection  Board  (SSB)  and  get  him
promoted with his peer group.  Counsel recommends the Board exercise  direct
promotion authority.

In  support  of  his  request,  applicant  provides  a  personal  statement,
counsel’s statement and copies of his OPRs for the period  beginning  2  Apr
03 and ending 1 May 07.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in  the  grade  of  major,
with a DOR of 16 Jul 01 and effective date of 1 May 02.

The following is a resume of the applicant’s OPRs rendered in the  grade  of
major.

      PERIOD ENDING    OVERALL EVALUATION

       08 Sep 04        MS
       08 Sep 05        MS
   08 Sep 06            MS
   01 May 07            MS

He was non-selected to the grade of lieutenant  colonel  by  the  CY05A  and
CY06A Lieutenant Colonel Central Selection  Boards  (CSBs).   The  applicant
requested removal of these non-selections which were approved per AFBCMR BC-
2005-03054 and AFBCMR BC-2006-02116.  The applicant  has  one  non-selection
to the grade of lieutenant colonel by the CY06C CSB.

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 Exhibit C and D.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPPO recommends denial.  DPPPO states the applicant was  selected  for
promotion to major by the CY97C Major Central Selection Board (CSB).   Based
on his sequence number he would have pinned on 1 May  98.   On  19  Sep  97,
applicant signed a promotion declination statement.  The applicant  met  and
was non-selected above-the-primary zone (APZ) for promotion to major by  the
CY99A Major CSB.  The applicant was selected for continuation by  the  CY99A
Captain (Line) Selective Continuation Board and offered continuation  to  20
years total active federal commissioned service.  The  applicant  failed  to
accept continuation and separated on the mandatory date of separation of  30
Nov  99,  waiving  all  outstanding  active  duty  service  commitments  and
entitling him to separation pay.  On 17 Jan 02, the applicant  requested  to
return to active duty under the Voluntary Recall Program.   His  return  was
approved as an exception to policy as he was a twice deferred officer.   The
applicant was returned to active duty on 1 May 02 as a captain with  a  date
of rank of 26 Aug 90.  He met the CY03A  and  CY03B  Major  CSB  as  an  APZ
candidate and was non-selected for promotion.  DPPPO advises  that  in  late
Aug 04, the Air Reserve Personnel Center advised  them  that  the  applicant
had met a Reserve SSB in 2003 and was promoted to the grade of major with  a
date of rank and effective date of 1 Oct 00.  Based on his DOR as  a  major,
he was eligible to meet the CY05A Lt Colonel CSB as an  IPZ  candidate.   He
was non-selected for promotion and subsequently  requested  removal  of  the
non-selection which was approved per AFBCMR  BC-2005-03054.   He  was  again
eligible as an IPZ candidate for the CY06A  Lt  Colonel  CSB  and  was  non-
selected.  He requested removal of the non-selection which was approved  per
AFBCMR BC-2006-02116.  The applicant met the CY06C Lt Colonel CSB as an  IPZ
candidate and was non-selected.

DPPPO advises that not all officers have the opportunity to attend  resident
Developmental Education (DE).  Approximately 20% of major selects  are  also
selected as candidates  (selects)  to  attend  a  resident  DE  program  and
although their promotion selection rate to lieutenant colonel  is  high;  it
is not a 100% select rate.  DPPPO states there is  no  evidence  to  suggest
had the applicant remained on active duty and competed with  his  peers  for
promotion to lieutenant colonel or returned to active duty as a major,  that
he would have been  selected  for  promotion  to  lieutenant  colonel.   The
applicant’s situation and competitiveness for  promotion  are  no  different
than many other officers who are promoted  by  an  SSB  with  a  retroactive
backdated DOR and miss their primary promotion board.  Given  the  fact  the
applicant was able to compete IPZ twice after  two  non-selections  provided
him the time necessary to be competitive and  earn  a  “DP”  recommendation.
Additionally, advises DPPPO, the applicant wrote a letter to the  CY05A  and
CY06C boards explaining the circumstances behind his record.

The AFPC/DPPPO complete evaluation is at Exhibit C.

AFPC/JA recommends denial.  JA advises to the extent that  the  sequence  of
events surrounding his  return  to  duty  and  promotion  to  major  created
unfairness  in  his  competing  for  promotion,  the   Board   appropriately
addressed that problem and provided full  and  fitting  relief  by  removing
from his record his first two promotion non-selections and returning him  to
IPZ status.  JA states that in light of the applicant’s initial decision  to
leave the Air Force, his decision to return despite the full  disclosure  by
the Air Force of the probable promotion  hurdles  he  would  face,  and  the
actions taken by this Board heretofore  to  provide  the  applicant  with  a
competitive opportunity, JA does not believe the applicant is the victim  of
any error or injustice warranting corrective action.  The  AFPC/JA  complete
evaluation is at Exhibit D.

_________________________________________________________________


APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Counsel states that the Air Force set the applicant up so that he could  not
possibly be promoted under the factual situation that he was in.   There  is
no sound way to correct the applicant’s case except to directly promote  him
and provide him an opportunity  to  compete  with  his  peers  for  colonel.
Counsel’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 timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice.  Based  on  two  previous  applications,
the Board removed two non-selections to the  grade  of  lieutenant  colonel.
The applicant contends, in essence,  that  by  solely  removing  these  non-
selections, it does  not  correct  the  discrepancies  in  his  record,  but
negatively affects his promotion opportunities.  Given the fact that he  was
subsequently able to compete for IPZ  promotion  after  both  non-selections
were removed, it is our opinion that he has been  provided  the  appropriate
time necessary to build a competitive record.  Therefore, we agree with  the
opinions  and  recommendations  of  the  Air  Force   offices   of   primary
responsibility and adopt their conclusions as basis for  our  findings  that
the applicant has failed to sustain his burden of proof of an error in  this
case.   Additionally,  finding  no  evidence  that  he  has   been   treated
differently than similarly situated officers, we do not believe he has  been
the victim of an injustice.  In view of the above and in the absence of  any
evidence that the record placed before the selection board in  question  was
erroneous or misleading, we have no basis upon which to  favorably  consider
his request.

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  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 Docket  Number  2007-02328  in
Executive Session on 10 Jan 08, under the provisions of AFI 36-2603:

           Mr. James W. Russell, III, Panel Chair
           Mr. Mark J. Novitski, Member
           Ms. Lea Gallogly, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2007-
02328 was considered:

     Exhibit A.  DD Form 149, dated 16 Jul 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, ARPC/DPPPO, dated 1 Oct 07.
     Exhibit D.  Letter, AFPC/JA, dated 17 Oct 07
     Exhibit E.  Letter, SAF/MRBR, dated 19 Oct 07.
     Exhibit F.  Letter, Counsel, dated 20 Nov 07.





                             JAMES W. RUSSEL, III
                                             Panel Chair