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


IN THE MATTER OF:      DOCKET NUMBER: BC-2006-03185

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  13 July 2010

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He receive a direct promotion to  the  grade  of  lieutenant  colonel,
with a Date of Rank (DOR) of 1 December 2004, or in the alternative,

2.    His record be considered for promotion  to  the  grade  of  lieutenant
colonel by a Special Selection Board  (SSB)  for  the  Calendar  Year  2002B
(P0502B) Lieutenant Colonel Judge Advocate General (JAG)  Central  Selection
Board (CSB), utilizing the modified selection method as specified in the  19
February 2004 Secretary of the Air Force Memorandum of Decision.

_________________________________________________________________

RESUME OF CASE:

On 2 July 2007, the Board considered the applicant’s request  that  his  DOR
for promotion to the grade of major be adjusted to 1 January  1999,  and  he
receive SSB consideration for promotion to the grade of lieutenant  colonel,
or in the alternative, that he be considered for promotion to the  grade  of
major by an SSB using a modified selection process  for  the  Calendar  Year
1997E (P0497E) Major JAG CSB, and if selected, he receive SSB  consideration
for promotion to the grade of  lieutenant  colonel.   The  Board  determined
that in view of the Court’s decision in Berkley and since the Air Force  did
not appeal that decision, his records should be considered for promotion  to
the grade of major by an SSB for the CY97E  Major  JAG  CSB.   However,  the
Board  found  insufficient  relevant  evidence   had   been   presented   to
demonstrate  the  existence  of  probable  error  or  injustice  to  warrant
adjusting the applicant’s DOR to major as if he were selected for  promotion
by the CY97E Major JAG Central Selection Board  through  the  correction  of
records  process.   For  an  accounting  of  the  facts  and   circumstances
surrounding  the  Board’s  previous  consideration   see   the   Record   of
Proceedings at Exhibit F.

Applicant was considered and selected for promotion to the  grade  of  major
by an SSB for the CY97E Major JAG CSB, with a DOR of 1 January 1999.

Applicant was considered and not selected for  promotion  to  the  grade  of
lieutenant colonel by an SSB for the CY02B Lieutenant Colonel JAG  CSB  with
an  overall  recommendation  of  “Definitely  Promote”  on   his   Promotion
Recommendation Form.

By application,  dated  5  February  2009,  the  applicant  requests  direct
promotion to the grade of lieutenant colonel,  with  a  DOR  of  1  December
2004, or in the alternative, that his record be considered for promotion  to
the grade of lieutenant colonel by an SSB, utilizing the modified  selection
method as specified in the 19 February  2004  Secretary  of  the  Air  Force
Memorandum of Decision  (MOD).   The  applicant  contends  that  his  direct
promotion is appropriate since his record  cannot  be  otherwise  adequately
corrected to put him in the same position he should have  been  in  had  the
error not occurred, i.e., meeting the 2002 Lt Col CSB with  an  OPR  written
as an In-the-Promotion-Zone (IPZ) candidate, rather  than  a  Below-the-Zone
(BTZ) candidate.  The applicant further contends  the  SSB  that  considered
him for promotion to the grade of lieutenant colonel was flawed  because  it
did not use the modified selection method for officers who  were  harmed  by
the  Equal  Opportunity  (EO)  language  in  the  improper   Memorandum   of
Instruction (MOI).  As  such,  the  erroneous  MOI  which  resulted  in  his
selection for promotion to the grade of major by an SSB,  not  only  tainted
his original Major  CSB  but  also  his  subsequent  SSB  for  promotion  to
lieutenant colonel.

In support of the appeal, applicant  submits  his  personal  statement,  the
2004 MOD, the PRF prepared for the P0502B,  and  the  SSB  results  for  the
P0502B and P0497E CSBs.

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

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO recommends denial and states, in part, they  do  not  agree  with
his assertion that it is common knowledge that performance reports  for  IPZ
candidates are written with pushes for promotion which are not given to  BPZ
candidates.  To the contrary, it is more common  to  see  consistent  pushes
and stratification throughout the reports on officers who are competive  for
promotion.  If he felt that his performance reports were  not  written  with
the strength necessary to be  competitive  at  his  IPZ  Lieutenant  Colonel
Board, there are avenues he can pursue to correct these  reports.   If  they
are changed, an additional SSB for his IPZ Lieutenant  Colonel  Board  would
be supported.  Moreover, there  is  insufficient  evidence  to  warrant  his
direct promotion through the correction of records process.  An officer  may
be qualified for promotion, but in the  judgment  of  a  selection  board  –
vested with discretionary authority to make the selections – he may  not  be
the best qualified of those available for the limited  number  of  promotion
vacancies.  There is no evidence to suggest he would have  been  a  selectee
by the CY02B Lt Col CSB, had he been promoted to major  on  time.   Further,
to grant promotion would be unfair to all other officers who have  extremely
competitive records and also did not get promoted.

A complete copy of the AFPC/DPPPO evaluation is at Exhibit H.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

There is no way to repair his irreparable record ten years  after  the  fact
other than directly promoting him to the grade of  lieutenant  colonel.   At
the time the error was made, the Air Force was not acknowledging the  error.
 It was not until the 2002 decision in Berkley the  Air  Force  acknowledged
the erroneous MOI.  By that time, more than four years had elapsed from  the
time he was passed-over for promotion to major by his IPZ  major  board  and
the damage to his record had already been done.

Applicant’s complete response is at Exhibit J.

________________________________________________________________

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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinion and recommendation of  the  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion  that
the applicant has not been the victim of an error or injustice.   Therefore,
in the absence of evidence to the contrary, we find no compelling  basis  to
recommend granting the relief sought in this application.

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 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  BC-2006-03185
in Executive Session on 25 February 2010, under the provisions  of  AFI  36-
2603:

                       Panel Chair
                       Member
                       Member

The following documentary evidence was considered:

    Exhibit F.  Record of Proceedings, dated 16 Jul 07, w/atchs.
    Exhibit G.  DD Form 149, dated 5 Feb 09, w/atchs.
    Exhibit H.  Letter, AFPC/DPPPO, dated 5 Oct 09.
    Exhibit I.  Letter, SAF/MRBR, dated 23 Oct 09.
    Exhibit J.  Letter, Applicant, dated 23 Nov 09.




                                                                       Panel
Chair