RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-01212

            COUNSEL:  NONE
                       HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Air Force Form 77, Supplemental Sheet rendered for the  period
of 7 Dec 02 through 15 Jun 03 be added to his Officer Selection Record
(OSR).

2.  His Air Force Form 77 rendered for the period of 21 May 03 through
11 Jul 03 be added to his OSR.

3.  His deployed Letter of Evaluation (LOE) rendered  for  the  period
12 Jan 05 through 14 May 05 be added to his OSR.

4.  He receive Special Selection  Board  (SSB)  consideration  by  the
Calendar Year 2009 (CY09) Colonel Central Selection Board  (CSB)  with
inclusion of the AF Forms 77.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In June 2009, he reviewed his records and discovered  that  two  2003
mandatory AF Forms 77 and the 2005 deployment LOE  were  not  in  his
selection records.  In mid June 2009, he hand delivered copies of the
Supplemental  Evaluations  Sheets  and  LOE  to  his  local  military
personnel flight (MPF) to have them filed in his records.  In  August
2009, he was advised by the MPF staff that the documents were in  the
system.  He checked both the Personnel  Records  Display  Application
(PRDA) and the Automated Management Systems (ARMS) and confirmed  the
documents were included in his records.  He believes he exercised due
diligence in having those documents included in his record; and along
with the confirmation from PRDA and ARMS, that these  documents  were
provided to the selection board.  He further  states  the  Air  Force
Instruction (AFI) 36-3208, Military Personnel Records System and  Air
Force Pamphlet (AFPAM) 36-2506, You and Your  Promotion,  state  that
deployed LOEs should be placed into the OSR.

He believes it is a material error not to include  the  documents  in
his selection records because  they  contained  relevant  information
about his performance as a Staff Judge Advocate (SJA) in two separate
deployments in support of contingency operations.  He believes  these
documents contained material information that  was  not  included  or
detailed  in  his  Officer  Performance  Report  (OPR)  or  Promotion
Recommendation Form (PRF) or decorations.  The pertinent  information
in  these  documents  attests  to  his  leadership,  professionalism,
officership,  competence,  character,  and   responsibilities.    His
performing well as a deployed SJA  is  strong  proof  of  leadership,
essential  to  the  decision  of  promotion.   By  not  having   this
information for the selection board to  consider,  deprived  them  of
pertinent information to obtain a complete and  accurate  picture  of
him based on the whole person concept, and could not fully assess his
potential to successfully serve in  the  next  higher  grade  and  in
positions of greater responsibility.

In support of his appeal the applicant provides copies  of  documents
extracted from his military personnel records.

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
lieutenant colonel.

The relevant facts pertaining to this application are  contained  in
the letters prepared by the appropriate offices of  the  Air  Force,
which are attached at Exhibits C through D.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denial.  DPSIDEP notes the applicant did  not
file an appeal through the Evaluation Report  Appeals  Board  (ERAB).
However, the ERAB reviewed his application and  denied  relief.   Per
AFPAM 36-2560 only “mandatory letters of evaluation” are filed in the
OSR and not LOEs.  LOEs are  temporary  documents  to  relay  from  a
temporary supervisor the performance of a ratee to the rater when the
rater  cannot  directly  oversee  the  ratee’s   performance.    Thus
providing the rater input to consider when accomplishing the  ratee’s
next performance evaluation.

The LOE is filed in the OSR only when used as  a  continuation  sheet
when there is not enough room on the actual evaluation  for  comments
in certain incidents.  There is no specific reference to file an  LOE
as a stand-alone document.

In 2005, the Chief of Staff of the Air Force (CSAF) directed that  an
LOE be completed on all deployed commanders and directed the  LOE  be
placed in officers OSR.  This is the only time a stand-alone  LOE  is
authorized to be placed in the OSR.  These LOEs are only for deployed
commanders (squadron, group, or  wing  commander  positions)  in  the
grade of colonel and below, serving as commanders for 45 days or more
in support of named operations and are appointed by G-Series orders.

The LOE dated 7 Dec 02 through 15 Jun 03 was inadvertently marked  as
“mandatory”; and should  have  been  marked  “optional”  and  is  not
authorized to be filed in the OSR.  The Supplemental  Sheet  for  the
period 21 May 03 through 11 Jul 03  was  marked  as  a  “Supplemental
Sheet”, but appears to be a continuation of the previous LOE with the
close out date of 15 Jun 03.  The LOE rendered for the period  ending
14 May 05 is marked optional and is not authorized to be filed in the
permanent record.

The applicant’s contention that the failure to place these  documents
in the selection file for the board to consider is a  material  error
is incorrect.  He could have exercised the option to write  a  letter
to the promotion board and include the documents as  attachments  for
the promotion board to consider.  However, once the  promotion  board
adjourned the LOEs do not remain as part of the OSR.

The complete AFPC/DPSIDEP evaluation is at Exhibit C.

AFPC/DPSOO  recommends  denial.   DPSOO  notes  the   applicant   was
considered and not selected for promotion to colonel  by  the  CY  09
CSB.  To allow the inclusion of his LOEs and Supplemental  Evaluation
Sheets that are not required to be in the OSR to be the basis for SSB
consideration  would  be  unfair  to  other  officers,  with  similar
circumstances, whose LOEs and Supplemental Evaluation Sheet were  not
authorized to meet the board as stand-alone documents.

All eligible officers meeting a CSB  have  the  option  to  submit  a
letter to the  board  president  to  address  any  matter  of  record
concerning themselves  that  they  believes  is  important  to  their
promotion consideration.  The applicant did not exercise his right to
submit a letter to the promotion board with the LOEs  as  attachments
for the board members to consider.

The complete AFPC/DPSOO’s evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states AFI 36-2501, Officer Promotions  and  Selective
Continuation, paragraph 6.3 warrants a Special Selection Board  when
there is a material error (factually or  administratively)  or  when
there is an injustice.  The  material  error  is  not  allowing  the
promotion board to consider his AF Forms 77 in 2003 and the  LOE  in
2005.  The Headquarters Air Force Space Command (HQ AFSPC) procedure
on promotion and the two personnel systems clearly permit the use of
AF Form 77 as part of the selection process.  Accordingly, his rater
and he relied on the LOEs being included in his OSR.    They  relied
on HQ AFSPC procedure that clearly stated that LOEs were permissible
as source documents in developing the  PRF.   The  two  official  AF
personnel systems, informed him that his LOEs were "confirmed" to be
part of his "selection folder".  He met with the general on  30  Sep
09 to  discuss  his  PRF.   During  their  discussion,  the  general
commented on the contents of the LOEs and used quoted language  from
the LOE as a basis for a line in the PRF.  Excluding the  LOE  is  a
material error because there would be no source  document  for  this
comment. He is being penalized for following the HQ AFSPC  procedure
that authorized the use of LOEs and their reliance on  the  official
personnel systems.

The advisory opinion claims that his "mandatory" LOE dated in  2003,
was inadvertently noted because he  was  not  a  deployed  commander
according to AFI 36-2506.  The rater made the decision to mark it as
mandatory; therefore, it is an indication  of  his  intent  in  2003
prior to the effective date of the current AFI.  If that was not his
intent, he could have easily marked otherwise.

The advisory  opinion  claims  that  he  failed  to  understand  his
reference to AFI 36-2608, Attachment 2, Table 2.1.  They claim  that
the LOE is only used for referral process, AF advisor comments,  and
generally a continuation sheet on an evaluation and therefore not  a
stand-alone document.  He is not sure where the advisory opinion  is
referring to, but it looks like they are referring  to  Rule  84  of
Attachment 2, Table 2.1, especially about the use of AF Form 77  for
referral process.  He was not referring to Rule 84 but to  Rule  83.
In short, it is not conditioned on the fact  that  it  should  be  a
referral LOE or  otherwise.  Combined  with  paragraph  1.5.1.1  and
Column D, it is logical to conclude that the LOE (either as LOEs  or
Supplemental Evaluation Sheets) will be part of the OSR.

The advisory opinion further claims that the exclusion of  the  LOEs
was not material error because he "had the opportunity  to  write  a
letter to the promotion board and include these “optional”  LOEs  as
attachments for the promotion board to  consider."   Both  ARMS  and
PRDA informed him that these LOEs were "confirmed” to be part of the
"selection folder."  With his reasonable reliance on this, sending a
letter to inform the board of my LOEs would have been superfluous.

The applicant further states based on the rationale above, he stands
with the analysis in his  original  package,  which  are  not  fully
addressed or rebutted by the advisory opinions.  Not only is there a
material error, there is also injustice done when his deployed  LOEs
were not considered during his promotion record.  His rater  and  he
reasonably relied on the AF Forms 77 for inputs in  the  PRF,  which
can only be located in the LOE, as part  of  his  selection  record.
Finally, in compliance with the purpose and  spirit  of  considering
the whole person concept for determining the  promotional  potential
of an officer, it is only right to consider
his LOEs as part of the selection folder for the promotion board  to
consider.

The applicant’s complete response, with attachments, 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.  The  applicant's
complete submission, to include his rebuttal, was thoroughly reviewed
and his contentions were duly noted.  However, we  do  not  find  the
applicant’s assertions or the documentation presented in  support  of
his appeal sufficient to overcome the rationale provided by  the  Air
Force offices of primary responsibility (OPRs).  As such, we  believe
the Air Force OPRs, particularly  AFPC/DPSIDEP  which  addresses  the
policy on inclusion of the LOEs, have correctly interpreted Air Force
policy in this matter.   We do  not  believe  either  of  the  policy
sources cited by the applicant support his view the LOEs should  have
been a part of his Officer Selection Record.  In reviewing AFPAM  36-
2506, we do not find that it authorizes the filing of LOEs as  stand-
alone evaluations in the record, only as a supplemental  continuation
sheet.   Additionally, the marking of the LOE in 2003 as  “mandatory”
by his commander does not authorize it to be filed as  a  stand-alone
document. We interpret the policy as requiring the commander to  mark
the LOE based on whether its filing was  mandatory  in  keeping  with
policy which defined when an LOE must be filed in the record, not  as
giving the commander a discretionary option to decide if it would  be
filed.  Hence, we agree  that  the  LOE  closing  15  June  2003  was
improperly marked.  We further note that since the applicant was  not
a deployed commander, he does not meet the criteria for the exception
approved by the Air Force to file LOEs as  stand-alone  documents  in
2005.  While we carefully considered the applicant’s  arguments  that
the  absence  of  the  LOEs  deprived  him  of  fair  and   equitable
consideration for promotion, we do not agree and do not find that  he
has been treated any  differently  than  others  similarly  situated.
Therefore, we agree with the opinions and the recommendations of  the
Air Force offices of primary responsibility and adopt their rationale
as the basis for our conclusion that  the  applicant  has  failed  to
sustain his  burden  of  proof  of  the  existence  of  an  error  or
injustice.  Therefore, in the absence of evidence to the contrary, we
find no 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   issues   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-
2010-01212 in Executive Session on 26 Oct 10, under the provisions  of
AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 23 Mar 10, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPSIDEP, dated 5 Jul 10.
   Exhibit D.  Letter, AFPC/DPSOO, dated 19 Jul 10.
   Exhibit E.  Letter, SAF/MRBR, dated 30 Jul 10.
   Exhibit F.  Letter, Applicant, dated 27 Aug 10, w/atchs.





                                        Panel Chair