RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00745
		INDEX CODE:  111.00, 131.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR) rendered for the period 16 Nov 99 through 15 Nov 00 be corrected and substituted with a reaccomplished OPR.

His Promotion Recommendation Form (PRF) prepared for consideration by the Calendar Year 2001A (CY01A) Central Colonel Selection Board, which convened on 8 Jan 01, be corrected and substituted with a reaccomplished PRF.

He be given Special Selection Board (SSB) consideration for promotion to the grade of colonel in accordance with the provisions of 10 USC 628 and 10 USC 628(b)(2), specifically that the instructions to the members of the SSB define a “definitely promote” overall recommendation on a PRF at an SSB as being equivalent to a “definitely promote” recommendation on PRFs considered at scheduled promotion boards.

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APPLICANT CONTENDS THAT:

His OPR closing 15 Nov 00 contained material errors, which directly resulted in material errors in his CY01A PRF. These material errors may have caused or contributed to his nonselection for promotion to the grade of colonel.

In support of his appeal, the applicant provided an expanded statement, supportive statements from his rater, additional rater, and senior rater, copies of the original contested OPR and PRF, the reaccomplished OPR and PRF, his appeals under the provisions of AFI 36-2401, the Judge Advocate General (JAG) OPR/PRF Writing Guide, the OPRs of other officers considered by the CY01A board, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant is currently serving on active duty in the grade of lieutenant colone1, having been promoted to that grade on 1 Aug 97.  His Total Active Federal Military Service Date (TAFMSD) is 29 May 85.

Applicant's OPR profile since 1989 follows:

	PERIOD ENDING	EVALUATION

	18 Mar 89			Meets Standards
  	 8 Sep 89			Meets Standards
	 5 Aug 90			Meets Standards
	 5 Aug 91			Meets Standards
	 5 Aug 92			Meets Standards
	23 May 93			Meets Standards
	23 May 94			Meets Standards
	15 Nov 94			Meets Standards
	15 Nov 95			Meets Standards
	10 Nov 96			Meets Standards
	15 May 97			Meets Standards
	28 Jan 98			Meets Standards
	28 Jan 99			Meets Standards
	15 Nov 99			Meets Standards
 *#  15 Nov 00			Meets Standards

* Contested report.

# Top Report at the time he was considered and nonselected for promotion to the grade of colonel by the CY01A (8 Jan 01) Colonel Board.

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AIR FORCE EVALUATION:

AFPC/DPPP recommended denial.  AFPC/DPPP noted that the applicant submitted two appeals to the Evaluation Reports Appeal Board (ERAB).  The ERAB denied his requests because the applicant wanted to use prohibited comments in the OPR (i.e., recommending for positions above his current grade--veiled promotion statements) that were used in the JAG OPR/PRF writing guide.  AFI 36-2406, Officer and Enlisted Evaluation Systems, dated 1 Jul 00, states that field agencies may not publish supplements that change basic policies and procedures.  According to AFPC/DPPP, the applicant did not provide any additional evidence in support of his appeal, and there was no evidence of injustice.

A complete copy of the AFPC/DPPP evaluation is at Exhibit C.

AFPC/DPPPO recommended denial.  AFPC/DPPPO indicated that they concur with the ERAB’s findings, as well as the AFPC/DPPP advisory, and that there is nothing further they could add to the matter under review.

A complete copy of the AFPC/DPPPO evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated either his OPR contained material errors, or he was placed at a disadvantage at the promotion board because the OPRs of other individuals contained prohibited comments.  In his view, the Air Force’s position is internally inconsistent.

According to the applicant, a fair reading of his package provides overwhelming evidence that the playing field was not level at the CY01A colonel board.

Applicant’s complete response is at Exhibit F.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of injustice warranting corrective action in this case.  

	a. Concerning the applicant’s request that his OPR closing 15 Nov 00 be voided and replaced with a reaccomplished OPR, we note the rater of the contested report indicated that in his attempt to make the applicant’s OPR as strong as possible, he included language in the draft of the OPR that the additional rater had him remove before it was finalized because he believed it was prohibited; i.e., a veiled promotion recommendation.  Both the rater and the additional rater subsequently became aware that the Judge Advocate General (JAG) had published an OPR/PRF writing guide which contained an example of an assessment for a lieutenant colonel (0-5) that was similar to the language that was not permitted for inclusion in the applicant’s OPR closing 15 Nov 00.  The additional rater stated that had he known of the apparent change to the rule against promotion recommendations, he would have allowed the language proposed by the rater in the OPR, which is now included in the reaccomplished OPR.  Besides the above supportive statements, the applicant also has provided documentary evidence which appears to support his assertion that similar language may have been used in the OPRs of other JAG officers which may have put him at a disadvantage when he was considered for promotion to the grade of lieutenant colonel.  Furthermore, since the time the contested report was prepared, there seems to have been a change in policy concerning the prohibition against promotion recommendation in OPRs.  Notwithstanding the apparent prohibited comments in the reaccomplished OPR, in view of the foregoing, and to remove the possibility of an injustice, we recommend that the applicant’s OPR closing 15 Nov 00 be voided and replaced with the reaccomplished OPR, as an exception to policy. 

	b. Regarding the applicant’s request that the CY01A PRF be voided and replaced with a reaccomplished PRF, we note the senior rater stated that he relied heavily on the original OPR closing 15 Nov 00, which was void of the language now included in the reaccomplished OPR, and that it was the basis for his “Promote” recommendation on the original PRF.  In view of our recommendation to have the original report voided and replaced with the reaccomplished one and the senior rater has provided a “Definitely Promote” PRF for inclusion in the applicant’s records based on the reaccomplished OPR, we also recommend that the CY01A PRF be voided and replaced with a reaccomplished PRF.

	c. In view of the foregoing, we further recommend that the applicant be given appropriate SSB consideration with his corrected records.  

4.  We note the applicant’s request that the Board direct that instructions be given to the SSB members regarding a “definitely promote” recommendation at an SSB, however, we have no basis to question the integrity of the SSB process and we are not inclined to direct that special instructions be given to the members regarding its procedures.

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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. The Field Grade Officer Performance Report (OPR), AF Form 707A, rendered for the period 16 Nov 99 through 15 Nov 00 be declared void and removed from his records.

	b.  The attached OPR, AF Form 707A, rendered for the period 16 Nov 99 through 15 Nov 00, which reflects in Section VI, Rater Overall Assessment, “…assign as Chief Circuit Military Judge or MAJCOM/SJA!” be inserted in his officer selection folder, as an exception to policy.

		c.  The Promotion Recommendation (PRF), AF Form 709, prepared for consideration by the Calendar Year 2001A (CY01A) Central Colonel Selection Board, which convened on 8 Jan 01, indicating a “Promote” recommendation in Section IX, Overall Recommendation, be declared void and removed from his records.

		d. The attached PRF, AF Form 709, prepared for consideration by the CY01A Central Colonel Selection Board indicating a “Definitely Promote” recommendation in Section IX, Overall Recommendation, be inserted in his officer selection folder.

It is further recommended that he be considered for promotion to the grade of colonel by a Special Selection Board for the CY01A Central Colonel Selection Board and for any subsequent boards for which the OPR closing 15 Nov 00 was a matter of record.

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The following members of the Board considered AFBCMR Docket Number 02-00745 in Executive Session on 16 Jul 02, under the provisions of AFI 36-2603:

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

     Exhibit A.  DD Form 149, dated 28 Feb 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPP, dated 7 May 02.
     Exhibit D.  Letter, AFPC/DPPPO, dated 7 May 02, w/atchs.
     Exhibit E.  Letter, SAF/MRBR, dated 17 May 02.
     Exhibit F.  Letter, applicant, dated 20 May 02.

                                   

AFBCMR 02-00745

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 , be corrected to show that:

		a. The Field Grade Officer Performance Report (OPR), AF Form 707A, rendered for the period 16 Nov 99 through 15 Nov 00 be, and hereby is, declared void and removed from his records.

		b.  The attached OPR, AF Form 707A, rendered for the period 16 Nov 99 through 15 Nov 00, which reflects in Section VI, Rater Overall Assessment, “…assign as Chief Circuit Military Judge or MAJCOM/SJA!” be inserted in his officer selection folder, as an exception to policy.

			c.  The Promotion Recommendation (PRF), AF Form 709, prepared for consideration by the Calendar Year 2001A (CY01A) Central Colonel Selection Board, which convened on 8 Jan 01, indicating a “Promote” recommendation in Section IX, Overall Recommendation, be, and hereby is, declared void and removed from his records.

			d. The attached PRF, AF Form 709, prepared for consideration by the CY01A Central Colonel Selection Board indicating a “Definitely Promote” recommendation in Section IX, Overall Recommendation, be inserted in his officer selection folder.

		It is further directed that he be considered for promotion to the grade of colonel by a Special Selection Board for the CY01A Central Colonel Selection Board and for any subsequent boards for which the OPR closing 15 Nov 00 was a matter of record.

                                                                           

Attachments:
1.  AF Form 707A
2.  AF Form 709