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

IN THE MATTER OF:	DOCKET NUMBER: 01-01181
		INDEX CODE 102.00 107.00
		COUNSEL: 

		HEARING DESIRED: Yes

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APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests the full and complete correction of his military records as ordered in an AFBCMR 2 Nov 99 directive.

The AFBCMR order his selection to Senior Service School (SSS) and his consideration for command and promotion.

He be given proper credit for command for service as a unit commander (squadron level) from 1977-1978 and he be given the Joint Service Officer Designator.

His records reflect current duty history, schools, or awards and decorations earned through all honorable service prior to 1999.

His regular appointment be finalized.

His back pay and allowances based on his retroactive promotion to lieutenant colonel be fully adjudicated.

The Board direct the Air Force and all responsible AFPC elements to “reconstitute” his full record in accordance with the original directive language.

The Board direct a reconstituted record to reflect all career service, regardless of current policy restrictions, as if the service had been performed within accepted Air Force standards for the entire career.

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APPLICANT CONTENDS THAT:

Counsel for the applicant states that the mainstream Air Force, with current AFIs, policy, and the myriad of personnel directives has been incapable of effectively correcting the applicant’s record to a competitive state.

The 2 Nov 99 AFBCMR directive contained directions to “reconstitute” a record that would allow the applicant to “compete” for service within the members peer group.  This in turn would create and promote the climate of a “fair and equitable” competitive state for professional promotion opportunity.  The applicant’s record has not been reconstituted or completed and remains in a serious state of disarray.

The current service record built, validated, and maintained for the applicant by AFPC reflects service that is incomplete, inaccurate, prejudicial, and manifestly contrary to the clear stipulations set forth in the AFBCMR 2 Nov 99 directive.

AFPC’s reconstitution of the applicant’s records cannot overcome the deficiencies and the only relief from continued damage to his career is for the AFBCMR to act in the place of the active Air Force personnel system and order the applicant’s selection for SSS, consideration of command assignment, and consideration for promotion to colonel (O-6).

The applicant’s records as currently reconstituted show no consideration for promotion to colonel (O-6), selection for command, or selection for SSS.

The applicant’s record as presently configured is read as “passed over” for promotion to O-6, selection for command, and selection for SSS although he has not been officially considered even once.

AFPC refuses to grant the applicant full command status, alleging a change in policy or suggesting that previous command experience is dated, though had the command credit been entered when applicant was last on active duty (prior to 1996) the credit for command would have remained.

Applicant’s Counsel submitted two addendums to this application that provides additional evidence of further injustice suffered by the applicant.

Applicant’s complete submission, with attachments and addendums, are at Exhibits X, Y, and Z.

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STATEMENT OF FACTS:

Applicant was retired under his established early retirement date of 1 Sep 94, because of having been twice nonselected for promotion to the grade of lieutenant colonel.  As a result of previous AFBCMR action subsequent to his separation (Exhibit V), applicant’s promotion record was corrected, he was considered for promotion by special selection board (SSB), and he was retroactively selected for promotion to lieutenant colonel.  Applicant then filed an addendum (Exhibit W) with the Board requesting reinstatement to active duty with back pay and allowances, reconstruction of his records to show “competitive and productive continuous service,” consideration for promotion to colonel at the date of first eligibility, and payment of out-of-pocket expenses and attorney fees.  In response to that addendum, the Board ordered that applicant’s record be corrected to show that he was not retired on 1 Sep 94 in the grade of major, but was continued on active duty and was ordered permanent change of station to his home of record pending further orders; that an AF Form 77, Supplemental Evaluation Sheet, be prepared and inserted in his record to show that no performance reports were available for the period when he was not serving on active duty; and that any nonselections for promotion to the grade of colonel in the primary zone prior to receiving a minimum of two officer performance reports (OPRs) in the grade of lieutenant colonel be set aside.  The other requests were denied.

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AIR FORCE EVALUATION:

AFPC/DPAP evaluated this application in regards to the applicant’s request for designation as a Joint Specialty Officer (JSO) and retroactive selection to SSS.  They recommend that applicant not be designated a JSO, but be considered for SSS by special selection board if his senior rater supports nominating him as a non-candidate.

The applicant has not completed the requirements necessary to be designated a JSO.

The complete evaluation is at Exhibit AA.

AFPC/DPPPO evaluated this application in regards to the applicant’s request for consideration for promotion to colonel (O-6), award of proper credit for duty history, schools, and awards and decorations for O-6 management Level Review (MLR) and the CY00A central colonel selection board, and completion of his regular appointment.  They recommend denial of the applicant’s requests.

While it is unfortunate that the applicant had a six-year break in service, his situation is not unique.  The AFBCMR has fairly considered the applicant’s case and has provided fair relief--he was given opportunity to build a competitive record as a lieutenant colonel and has had a promotion nonselection to colonel “set aside.”  Neither the AFBCMR nor the Air Force Personnel Center can fabricate a lieutenant colonel’s selection record that mirrors those of the majority of the applicant’s peers.  Aside from his break in service, most did not serve four years in non-EAD status or ten years in another branch of service.  The bottom line is the applicant’s selection record can never look like his peers’.

The complete evaluation is at Exhibit AB.

DFAS-POCC/DE evaluated this application in regards to the applicant’s requests to be reimbursed for civilian annual and sick leave taken before being reinstated to active duty on     1 Sep 94 and reimbursement of attorney’s fees.

They recommend denial of the applicant’s requests.  There is no authority to treat civilian leave as a substitute for military leave.  In the applicant’s case, he was granted a waiver of the 57 days of leave deducted at reinstatement and repaid the amount in June 2000.

In regards to attorney’s fees, the law established under      10 U.S.C. 1552 does not provide for the assessment of attorney fees.  They are not aware of any statute or law that provides for the payment of attorney fees as a result of the correction of military records.  In the absence of statutory authority, payment should not be allowed.

The complete evaluation is at Exhibit AC.

AFPC/JA evaluated this application in regards to whether the Air Force has violated the Board’s earlier order and whether the applicant has been treated unfairly or improperly in response to his previous record corrections.  They recommend denial of the applicant’s requests.

In their view, the applicant has confused his written request for relief with the order and relief actually granted by the Board in its order.  Applicant now claims that the AFBCMR decision of 2 Nov 99 directed the Air Force to “reconstitute a record that was competitive.”  Through his counsel, applicant argues that that standard entails creating a record “as if the service had been performed within accepted Air Force standards for the entire career.”  However, the Board in its decision did not levy such a requirement.  To insure the competitive fairness that applicant requested, the Board ordered that an Air Force Form 77 be inserted into the record to explain that performance reports were not available for the period when he was not serving on active duty (through no fault of his).  In its record of proceedings (p.3), the Board noted applicant’s request for a “reconstituted” record; however, the Board rejected that request, noting that  “in cases such as this, performance reports cannot be manufactured to cover a break in service.”  The Board obviously believed that inclusion of the Form 77 and the opportunity to build an actual record as a lieutenant colonel over two years would afford applicant the requisite opportunity to build a competitive record and compete fairly.  Suffice it to say, in addition, the Board never specifically ordered or even addressed potential consideration for SSS and/or command assignment.  In short, the AFBCMR’s directive was unequivocal and concise and did not embody those actions now complained about by applicant.

Applicant is asking the AFBCMR to create a record for service never performed (which clearly goes beyond even the BCMR’s authority to correct a record) because his record as presently corrected is perceived to put him at a disadvantage vis-à-vis his contemporaries.  In arguing that the delays in the case and the nature of the Board’s previously ordered corrections still put him at a disadvantage, applicant seems to have forgotten that his records were corrected to afford his promotion to lieutenant colonel and he was returned to active duty at his request.  

The correction process can only go so far to make an individual whole.  The applicant seems to be demanding perfection that is simply not possible.  The corrections to his record have necessarily created the situation of which he now complains.  Retroactive dating to establish new dates of rank and pay dates to rectify errors or injustices is an integral part of the correction process.  Yet the down side of that process is the officer’s immediate or almost immediate qualification for consideration for promotion to the next grade.  When it becomes necessary to effect corrections involving the establishment of retroactive dates of rank, once made, those corrections must be accepted as final and conclusive evidence for all purposes.  Just as importantly, the process must end.  Not every potential contingency or byproduct of correction can be remedied.

The complete evaluation is at Exhibit AD.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant responds to the Air Force advisories in a letter with six attachments which includes two letters of support, Evidence and Exhibits, Facts, Findings, & Relief Requests, a complete and expanded rebuttal and an Executive Summary.  Counsel requests that the Board take special notice of the letters provided by the PACAF/CV and the applicant’s senior rater.  He states that these letters encapsulate the entire case and cause action, cries out for justice to be served, and lays the ultimate resolution of the documented injustice into the hands of the AFBCMR.

Counsel states that after consulting with the applicant and his military advisor, he concludes that AFPC did not read or appreciate the scope of applicant’s request for AFBCMR intervention and resolution of those issues raised before them.  The issues that AFPC did touch on, except for Joint Duty credit failed to produce “proof” contrary to the irrefutable evidence in support of applicant’s new appeal.  As such, AFPC has failed to correctly comprehend, to the fullest extent, the purpose and intent of this appeal.  That is, the fundamental right of every Air Force officer to have a complete and accurate record free of “material errors,” to fairly compete with his or her assigned year peer group for career assignments (i.e., command PME in residence), and to be fairly considered for promotion.

Counsel provides a summary that he indicates focuses on those elements that they believe are clearly within the powers of the AFBCMR process to grant relief as fair and equitable.  Counsel provides a disclaimer that indicates that applicant did not seek or request the Board to consider as an appropriate measure for whole and complete relief the following:

	  a.  Direct or retroactive promotion to colonel and reconvene the MLR.

	  b.  Creation of a “Dummy Record” covering the 6-year service gap with awards, performance reports, schools and assignments.

	  c.  Direct the Board to award Attorney Fees for previous errors and injustice.

Counsel states that the unusual disclaimer is offered because they believe the AFPC advisory respondents did not fully read or comprehend what applicant was requesting to have corrected.  Contrary to the AFPC advisories indicating requests for direct promotion and special treatment, Counsel indicates that he requested that the Board step in and take charge of applicant’s career, to correct all “material errors” in his Officer Selection Brief, make right “errors of injustice” by restoring accurate and complete past duty history, granting full credit for command and executive officer duties, JSO credit and, finally, give the applicant the same opportunity to compete for the same career assignments and promotion opportunities that his peer group has had.

In the Executive Summary, Counsel provides direct response to the following 10 issues or statements addressed in the Air Force evaluations:

	  1.  Advisory contends: While it is unfortunate that the applicant has a six-year break in service, his situation is not unique.  Counsel responds that a six-year gap in service is very unique, especially in that it was caused by a simple material error when AFPC omitted ten years of performance reports from promotion consideration resulting in an illegal administrative discharge and forced retirement.  Counsel further contends that AFPC/JA has not addressed the requirement for AFPC to ensure applicant’s record is reconstituted, including the gap in-service, to its former state prior to the admitted injustice, and it accurately reflects the “full service” information omitted from the original promotion process, as well as all subsequent service and assignment omissions since the applicant’s return to active service.

	  2.  Advisory contends: The AFBCMR has fairly considered the applicant’s case (1994) and has provided fair relief--he was given opportunity to build a competitive record as a lieutenant colonel.  Counsel states that he unequivocally denies that the applicant has been given every opportunity to build a competitive record.  In fact, quite the opposite.  Applicant has repeatedly been denied the opportunity to correct his record, up to and including the rote dismissal of previous documented proof of service, education, awards and assignment.

	  3.  Applicant’s selection record can never look like his peers.  Counsel indicates that he wholeheartedly agrees with this element of the AFPC summary.  As long as the applicant’s record remains incomplete, including numerous unattended “material errors,” the record will not look the same as those of his peers and he will be denied the opportunity to compete for career assignments.  Counsel and applicant contend, however, that the Board has a unique opportunity to correct these errors and direct that the record be corrected and is free of “material errors,” 

	  4.  AFPC’s response to Counsel’s claim that there is confusion regarding applicant’s promotion status--once deferred and the adverse impact on eligibility criteria in meeting Commander selection boards and MLRs: “Unless the report is expedited for this board, the applicant will not meet the AFBCMR directive’s requirement of having two OPRs on file prior to his “primary zone” consideration.  It’s likely the applicant will not meet his primary board until late 2002.”  Counsel responds that AFPC did not answer their complaint, as the record was ordered deferred after the CY00 colonel’s board and applicant’s record was tagged in excess of 5 months as a “deferred” officer for promotion and in at least one case, the alleged deferment was identified as a “show stopper” when applicant competed and was non-selected for Support Group Deputy Commander.

	  5.  The Advisory states: We recommend the AFBCMR deny the applicant’s request for direct promotion, to reconvene the MLR is moot, and since he has already accepted a Regular Air Force appointment and there are no errors in his OSB for the PO600A promotion board, no additional action is required.  Fair relief was provided.  This relief cannot be continuous at the discretion of the applicant.  Counsel responds that neither he nor the applicant has ever asked the Board to consider direct promotion.

	  6.  The advisory recommends applicant not be designated a JSO since he has not met Joint Professional Military Education (JPME) I and II requirements.  AFPC has offered to grant consideration for SSS selection via a SSB, if senior rater supports nominating the officer as a non-candidate.  Based on the applicant’s qualifications and unique circumstances, Counsel requests that the Board direct the Air Force to request a DOD waiver for JSO consideration.  In regards to consideration for SSS by SSB, Counsel indicates the SSS SSB route has been tried and determined on 1 Nov 00 that the “reconstruction of command level non-candidate PME selection process for FY 94, 95, and 96 to be undoable.”

	  7.  The advisory contends: Applicant has taken liberty with the words and intent of the SECAF directive and “confused written request for relief with the order and relief actually granted by the Board.  By inference the JA suggests that under the strict letter of the Board’s order, the Air Force has no responsibility to reconstitute a record that was competitive.  This, of course, would be a blatantly unsound stance by the Air Force.  Counsel indicates that he and the applicant contend that this is further evidence of the lack of continuity and/or detail provided in the construct or executive review of AFPC’s argument and further substantiates their claim of prejudiced willful counter posture on the part of AFPC reviewing officials.

	  8.  AFPC contends in its advisory that the AFBCMR never specifically ordered or even addressed potential considerations for SSS and/or command assignment.  In short, the AFBCMR’s directive was unequivocal and concise and did not embody those actions now appealed by the applicant.  Counsel responds that to assume, as AFPC/JA, has that these considerations were inherently part of the Board’s decision, and/or were clear, is misleading, nonsensical, and distorts the Board’s actual documented language to grant full and fair relief.  Implied tasks are inherent in any legal order, issued by legal authority.  The implementations of the orders are seldom spelled out exactly in “black and white,” with specific language toward every possible course of action.

	  9.  The applicant’s point of standards entails creating a record as if the service had been performed within accepted Air Force standards for the entire career is not substantiated and that the board did not levy such a requirement.  Counsel replies that every officer subject to the AFI is guaranteed a service record constructed within accepted Air Force standards as a record that can be fairly evaluated and assessed for assignment and promotion.  This comment by AFPC seems to imply that simply because the “SECAF’s order” did not specifically order reconstitution of the record that his client does not deserve a record that adequately reflects the elements of his career and service which were originally omitted from his jacket as result of the flawed promotion in 1993 and 1994, or his current service since reinstated on active duty.

	  10.  AFPC/JA states that the correction process can only go so far to make an individual whole…applicant seems to be demanding perfection; that is simply not possible…not every potential contingency or by-product of correction can be remedied…these cases could drag on forever addressing the new anomalies invariably created by tampering with history.  To this Counsel states that the applicant is only seeking correction of those “material errors” and “errors of injustice” that are impacting his ability to fairly compete for command, SSS in-residence, JSO status, and promotion.  Counsel indicates that while they do not want to tamper with history, they do, however, want to correct the record to accurately “reflect history,” a right fundamentally guaranteed to every service member.  For AFPC/JA to espouse that AFPC was never directed by the Board’s order to reconstitute a record that was competitive and allow his client the opportunity to fairly and equitably compete for career assignments is contrary to that guarantee.

Counsel lists three issues that they contend AFPC did not choose to comment on or rebut:

	  1.  Absences of reconstituted record for command and executive officer credit, academic credit, incorrect duty title, and incomplete duty history.

	  2.  Absences of a fully reconstituted record and eligibility criteria for 2000 and 2001 “command” level boards.

	  3.  Absences of a fully reconstituted record and missing AF Form 77 in CY00 Colonel’s MLR and central selection board and soon to be repeated in the upcoming CY01 MLR and central selection board.

In a letter, with attachments, dated 18 Dec 01, Counsel provided an addendum to his original rebuttal comments that includes what he states is newly discovered evidence of “material errors and error of injustice” affecting his client’s case.

Counsel states that on 3 Dec 01, the applicant received a call from an officer in his local mission support squadron offering assistance to help him correct his record.  Counsel states that to he and the applicant, this offer of help is an admission that errors do exist in the applicant’s record.  Counsel also offers evidence of efforts by the applicant to try and get his record corrected through Air Force channels.  He has provided a copy of a letter written to AFPC/DPAP in response their 18 Jun 01 advisory opinion.

Finally, Counsel states that they offer this further evidence as why the Board must step in and take charge of the applicant’s record and order the corrections required.

Counsel’s complete initial response and addendum, with attachments, is at Exhibits AF and AG.

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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 probable error or injustice.  We reviewed the applicant’s complete submission in judging the merits of this case and in reaching our conclusion that, with the exception of the additional corrections recommended herein, the applicant has been provided the maximum relief warranted based on the evidence presented and of record.  Applicant and his counsel stress as the basis for their requests that AFPC has failed to implement the relief stated and implied in the   2 November 1999 AFBCMR directive.  We disagree. Applicant and counsel seem to be seeking relief that will totally eradicate the existence and impact of the applicant’s break in service.  However, as noted by AFPC/JA, the correction process can only go so far to make an individual whole.  The corrections to his record have necessarily created the situation of which he now complains.  Retroactive dating to establish new dates of rank and pay dates to rectify errors or injustices is an integral part of the correction process.  Yet, the down side of that process is that the officer qualifies for promotion consideration without having had the opportunity to build the record of performance that has been an ongoing process for his contemporaries.  Nevertheless, when it becomes necessary to effect corrections involving the establishment of retroactive dates of rank, once made, those corrections must be accepted as final and conclusive for all purposes.  Just as importantly, the process must end.  Not every potential contingency or byproduct of the correction process can be remedied.

4  Many of the items requested by applicant and counsel seek to have the Board establish special rules or disregard existing rules and regulations to provide the applicant with the relief he is seeking, e.g., JSO designation, inclusion of all his prior service in his Air Force record, selection for SSS, etc.  We do not support this approach.  Finally, applicant and counsel refer to the letters of support provided by the applicant’s reviewer and senior rater as evidence that the applicant cannot compete for command, SSS, or promotion with his contemporaries because of the gap in service.  Again, as noted above, the relief provided in the 2 Nov 99 AFBCMR directive provides the applicant the opportunity to build a record of performance before being considered for colonel in the primary zone.  He may never fully recover from the effects of a six-year gap in service.  On the other hand, there is no guarantee that he would have attained the grade of colonel had he not suffered the errors and/or injustices that led to his separation from service.  Hundreds of fully qualified officers who compete for promotion on a best-qualified basis do not attain the grade of colonel due to the limited number of promotion vacancies. Accordingly, we believe that any future promotions must be earned through the well established process that now exists and that the applicant has been provided the best opportunity that we can afford him, based on the circumstances, to compete and that no further relief is warranted.

5.  Notwithstanding our determination that the Board has previously provided the applicant the maximum relief warranted, we support the recommendation by AFPC/DPAP that the applicant be considered for SSS selection by special selection board should his senior rater support nominating him as a non-candidate.  The applicant now has two OPRs in his record as a lieutenant colonel and in keeping with the 2 Nov 99 directive, if he is nonselected for promotion to colonel in the primary zone by the CY01 Colonel Selection Board it will count against him.  After a review of his two OPRs, however, we note that one was generated based on a change in reporting official (CRO) and one was an annual report.  Since it was the intent of the Board to provide the applicant an opportunity to build a record of performance as a lieutenant colonel prior to his in-the-zone consideration, we believe that a more appropriate relief should have read “any nonselections for promotion to the grade of colonel in the primary zone prior to receiving a minimum of two annual Officer Performance Reports in the grade of lieutenant colonel be set aside.”  Therefore we recommend that the record be corrected as indicated below.

6.  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.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	  a.  He be considered for Senior Service School selection by special selection board provided he is nominated by his senior rate as a non-candidate.

	  b.  Any nonselections for promotion to the grade of colonel in the primary zone prior to receiving a minimum of two annual Officer Performance Reports in the grade of lieutenant colonel be set aside.

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The following members of the Board considered this application in Executive Session on 23 January 2002, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit V.  Record of Proceedings, dated 15 Aug 96.
     Exhibit W.  Record of Proceedings, dated 2 Nov 99.
     Exhibit X.  DD Form 149, dated 16 Apr 01, w/atchs.
     Exhibit Y.  DD Form 149 Addendum, dated 2 Jun 01, 
                 w/atchs.
     Exhibit Z.  DD Form 149 Second Addendum, dated 25 Sep 01,
                 W/atchs.
     Exhibit AA. Memorandum, AFPC/DPAP, dated 18 Jun 01.
     Exhibit AB. Memorandum, AFPC/DPPPO, dated 28 Aug 01,
                 w/atchs.
     Exhibit AC. Memorandum, DFAS-POCC/DE, undated.
     Exhibit AD. Memorandum, AFPC/JA, dated 3 Oct 01.
     Exhibit AE. Letter, SAF/MIBR, dated 19 Oct 01.
     Exhibit AF. Letter, Applicant’s Counsel, dated 23 Nov 01,
                 w/atchs.
     Exhibit AG. Letter, Applicant’s Counsel, dated 18 Dec 01,
                 w/atchs.

                                                                      Chair

AFBCMR 01-01181

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXXXXX, , be corrected to show that:

		  a.  He be considered for Senior Service School selection by special selection board provided he is nominated by his senior rate as a non-candidate.

		  b.  Any nonselections for promotion to the grade of colonel in the primary zone prior to receiving a minimum of two annual Officer Performance Reports in the grade of lieutenant colonel be, and hereby are, set aside.

		
		Director
		Air Force Review Boards Agency