RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 02-01385

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.	The Field Grade Officer Performance Report (OPR), closing 19 March 1996, be amended in Section VI, Rater Overall Assessment, to include an in-residence Professional Military Education (PME) recommendation, a comment stratifying him amongst his peers, and a job recommendation.

2.	The OPR, closing 19 March 1997, be amended in Sections VI, Rater Overall Assessment, and VII, Additional Rater Overall Assessment, to include an in-residence Professional Military Education (PME) recommendation, a comment stratifying him amongst his peers, and a job recommendation.

3.	The Promotion Recommendation Form (PRF) prepared for the Calendar Year 1999A (CY99A) Non-Line Judge Advocate General (JAG) Central Colonel Selection Board, be amended to include a comment stratifying him amongst his peers and a job recommendation.

4.	The Officer Selection Brief (OSB) prepared for the CY99A Non-Line JAG Central Colonel Selection Board, be amended by changing the Academic Specialty/School section to show that he received a Masters of Law degree in taxation; by changing the Overseas Duty History dates to reflect the inclusive dates for his tours in Iceland from 17 July 1993 to 16 July 1994 and 17 July 1994 to 15 July 1995; and by removing any reference to being a group-level Staff Judge Advocate (SJA) at --- from 1 July 1995 to 31 July 1995 from the Assignment History section.

5.	His nonselection for promotion to the grade of colonel by the CY99A Non-Line JAG Central Colonel Selection Board be set aside.

6.	He be retroactively promoted to the grade of colonel, with a date of rank (DOR) as if selected by the CY99A Non-Line JAG Central Colonel Selection Board, or in the alternative, his corrected record be reconsidered by the Non-Line JAG Aggregate and Carry-Over Management Level Review (MLR) Board for a Definitely Promote (DP) recommendation and he be considered for promotion to the grade of colonel by a Special Selection Board (SSB) for the CY99A Non-Line JAG Central Colonel Selection Board.

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THE APPLICANT CONTENDS THAT:

Erroneous omissions in the contested OPRs placed him at a significant disadvantage in competing for a DP recommendation by the Aggregate and Carry-Over MLRs as well as for selection for promotion to the grade of colonel.

Although his rating chain intended for him to be competitive for promotion to the grade of colonel, the omission of key phrases (i.e., rater and additional rater erroneously failed to include an in-residence Senior Service School (SSS) recommendation, the additional rater erroneously failed to include a stratification comment and a job recommendation) substantially diminished his chances for a DP recommendation and promotion selection.  In addition, the senior rater erroneously failed to include a stratification comment in the contested PRF.  The failure to include these comments was due to inadequate guidance provided to his rating officials who were Naval officers, and was not intended to send a negative message concerning his suitability for promotion.

His OSB contained incorrect overseas duty dates for his tours in Iceland because they reflect an overlapping period and do not cover the entire period he served.  The OSB also contains misleading information regarding his Academic Specialty/School and does not alert the promotion board members to the fact that he earned a Master of Law (LL.M) Degree.  The Air Force JAG places great importance on the possession of LL.Ms.  His OSB also reflects that he was a Group Staff Judge Advocate in ---.  While this is true, it is misleading.  In this regard, he notes that his OPR was prepared at the Wing level and he completed a Permanent Change of Station (PCS) only two weeks after the organization was redesignated as a Group.  An officer, not fully aware of the redesignation, reviewing his records at the Aggregate and Carry-over MLRs or at the Central Selection Board, could interpret this entry as meaning he was sent to a subordinate legal office position within the Wing until he completed his PCS.  The inclusion of a reference to the --th Group on his OSB is administratively unnecessary since no other portion of his records makes reference to the --th Group.

In support of the appeal, the applicant submits statements from the rater and additional rater on the contested reports, a statement from the senior rater on the contested PRF, a reaccomplished PRF, and reaccomplished OPRs.

The rater and additional rater of the contested OPRs state that they did not include SSS and job recommendations because they thought it was inappropriate to do so since these selections were made within the Judge Advocate channels and would be ultimately approved by the additional rater.  The senior rater of the contested PRF states that when he prepared the contested PRF for submission to the Aggregate Board with a DP recommendation, he failed to include stratification comments and a job recommendation because he was unaware of their importance.

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

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STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of lieutenant colonel.

The applicant was considered and not selected for promotion to the grade of colonel by the CY99A, CY01A, and CY01B Central Colonel Selection Boards.

Applicant’s performance profile, since 1992, follows:

       PERIOD ENDING             OVERALL EVALUATION

         19 Mar 92              Meets Standards (MS)
         19 Mar 93                      MS
         19 Mar 94                      MS
         19 Mar 95                      MS
       # 19 Mar 96                      MS
       # 19 Mar 97                      MS
         19 Mar 98                      MS
       * 19 Mar 99                      MS
      ** 19 Mar 00                      MS
     *** 19 Mar 01                      MS

# Contested Reports

* Top report reviewed by the CY99A Col Board
** Top report reviewed by the CY01A Col Board
*** Top report reviewed by the CY01B Col Board

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AIR FORCE EVALUATIONS:

AFPC/JA recommends the application be denied, and states, in part, that the applicant has failed to prove any material error requiring correction.  In this respect, they note the following:

	a.	The general concepts of including job and SSS recommendations in OPRs has been fully recognized and their importance generally acknowledged in all career fields for well over the last ten years.  The assertions of the applicant and his raters that they did not realize the importance of these subjects are not credible.  The rater’s comment in both of the contested OPRs to “Challenge him!” and the additional rater’s exhortation that the ratee is “ready now for greater responsibility” clearly constitute job recommendations (albeit weak recommendations).  Furthermore, the two OPRs preceding the contested OPRs both contain recommendations for a job and SSS, and the two OPRs following the contested OPRs contain SJA and SSS recommendations.

	b.	The concept of stratification was first briefed in the 1997 time frame and was fully included in briefings and DP web site information by 1999.  In the JAG, the concept was being briefed by early 2000.  Because of that, reports written before 1999 are not normally held by promotion boards to the same standard with respect to stratification as reports written in the last three years.  The absence of such a comment on any OPR does not constitute error.

	c.	The applicant’s observation that the importance of job recommendations and stratification comments were not known within the Naval community, is contradicted by the 1998 and 1999 OPRs written by the same Navy senior rater and another Navy rater which both contain very specific job and SSS recommendations.

The AFPC/JA evaluation is at Exhibit C.

AFPC/DPPPO recommends the application be denied, and states, in part, that officers will not be considered by an SSB if, in exercising reasonable diligence, the officer should have discovered the error or omission in his/her records and could have taken timely corrective action.  They do not believe the applicant has exercised reasonable diligence and has had more than ample opportunity to correct the OSB discrepancies.  Since he has not demonstrated reasonable diligence in the maintenance of his records, they do not support promotion reconsideration.  While the applicant contends the Specialty/School area on his OSB is misleading, AFIT is the only agency authorized to update academic data and they have verified the specialty to be correct.  Although it may be argued that the errors on his OSB were factors in his nonselection for promotion, there is no clear evidence that they negatively impacted his promotion opportunity.

The AFPC/DPPPO evaluation, with attachment, is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states that the authors of the contested OPRs and PRF were asked to write in a “code” without being educated on what language it was based.  Now realizing that he has been harmed, these well-respected officers seek the only appropriate remedy.  AFPC/JA does not dispute that the absence of the referenced comments are significant to promotion board deliberations.  Instead, they accuse his rating officials of lying on his behalf.  While the rater and additional rater state that they were aware the instructions did not prohibit such comments, the instruction does not stress nor highlight their importance to promotion board deliberations.  Furthermore, the 1994 and 1995 OPRs referenced as containing such comments, were written by line officers.  Although AFPC/DPPPO admits that his OSB contained errors, they disingenuously argue that these errors did not contribute to his nonselection for promotion.

The 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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The statements from the rating officials are duly noted, and we are not questioning the integrity of these officials; however, we are not persuaded that the applicant has been the victim of an error or injustice.  Although these officials state that they did not include SSS and job recommendations because they thought it was inappropriate to do so since these selections were made within the Judge Advocate channels and would be ultimately approved by the additional rater, they do not indicate that they treated the applicant any differently than other officers similarly situated.  To the contrary, the rater states that he did not include these comments in any of the OPRs he prepared for the four lieutenant colonels and one major he rated during the period in question.  We also do not believe the applicant exercised reasonable diligence in insuring that his OSB was correct.  Applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The offices of primary responsibility have adequately addressed applicant’s contentions and we agree with their opinions and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Hence, we find no compelling basis to recommend granting the relief sought.

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.

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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.

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The following members of the Board considered Docket Number 02-01385 in Executive Session on 13 February 2003 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Apr 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 5 Nov 02.
    Exhibit D.  Letter, AFPC/DPPPO, dated 22 Nov 02, w/atch.
	Exhibit E.  Letter, SAF/MRBR, dated 6 Dec 02.
	Exhibit F.  Letter, Applicant, dated 3 Jan 02.