RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02371
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His nomination for promotion to the grade of colonel, Air Force Reserve, be submitted to the Senate for confirmation, or the Propriety of Promotion process be followed to remove the nomination.
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APPLICANT CONTENDS THAT:

He was notified of his selection for promotion to the grade of colonel in Dec 00.  On 16 Jul 01, he was informed that his nomination was returned without action.  The reason given was that informal coordination with the Senate revealed they would take no action on the nomination if it was submitted.  The injustice was the records reflected that he was selected for promotion to the grade of colonel.  His nomination has not been submitted for confirmation.  Neither has the Propriety of Promotion process been used to deny his promotion.

In support of his appeal, the applicant provided documentation regarding assignments to the Air Force Reserve colonel positions.

Applicant's complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

Available military personnel records indicate that the applicant was appointed a second lieutenant, Air Force Reserve, on 4 May 72.

By Reserve Order BA-2285, dated 2 Mar 94, the applicant was selected for promotion to the grade of colonel, with an effective date of 1 Apr 94. 

On 2 Nov 99, on behalf of the Secretary of the Defense, the Deputy Secretary of Defense recommended that the President of the United States remove the applicant's name from the Fiscal Year 1999 (FY99) Air Force Reserve Line Colonel Selection List.  The applicant had exhibited indicators of leadership deficiencies in the 1989-1991 time frame.  A 1993 Air Force Reserve investigation substantiated the following allegations of unprofessional conduct:  he conspired with his subordinates to import alcoholic beverages to Saudi Arabia; he did not provide for the safety of his people in combat in that he denied them access to a protective bunker while under hostile fire; and, he allowed personnel to check out Air Force weapons from a storage area for unauthorized use.  

On 14 Dec 99, the President of the United States approved the removal of the applicant's name from the FY99 Air Force Reserve Line Colonel Selection List.

By letter, dated 9 Apr 01, the Committee on Armed Services, United States Senate, indicated that they had received information concerning the nomination of the applicant for promotion to colonel.  The information revealed that, on at least two occasions, the Air Force Inspector General (IG) investigated the applicant for acts of misconduct during his service in Saudi Arabia during Operation Desert Storm and for irregularities in his officer efficiency reports.  The Committee requested that copies of the IG reports and any other potentially adverse information pertaining to the applicant be provided for their review.  In addition, the Committee requested confirmation whether the efficiency report recommended as a result of the second investigation was in the applicant’s official record that was considered by the promotion board.

By letter, dated 23 Aug 01, the applicant’s nomination for appointment in the grade of colonel was returned from the Senate to the White House without action.

Applicant was relieved from his assignment, assigned to the Retired Reserve Section, and his name was placed on the Reserve Retired List effective 21 Aug 02 (Eligible for Retired Pay Under 10 USC 12731, Except for Attainment of Age 60).  He was credited with 36 years of satisfactory Federal Service for retirement.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force.

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AIR FORCE EVALUATION:

ARPC/DPB recommended denial noting that the applicant was considered and selected for promotion by the FY93, FY94, and FY99 Air Force Reserve Colonel Promotion Selection Boards.  In each instance, a Propriety of Promotion action was completed and the applicant’s name was removed from the promotion list.  He was not selected by the FY00 Air Force Reserve Colonel Promotion Selection Board.  

According to ARPC/DPB, the applicant was considered and selected for promotion to the grade of colonel by the FY01 Air Force Reserve Colonel Promotion Selection Board.  The selection list was approved by the President and submitted to the Senate for the required advice and consent to promote the named officers to the grade of colonel.  A letter, dated 9 Apr 01, from the Senate Armed Services Committee, requested additional information concerning the applicant.  On 23 Aug 01, the names of several officers were returned by the Senate to the White House without action.  The applicant’s name was among those names returned without action.  Once the names of the officers were released by the White House, they would proceed back down the chain to the Secretary of the Air Force for any further action.

ARPC/DPB indicated that the Senate has failed to confirm the name of the applicant for promotion to the grade of colonel.  Under the Standing Rules of the Senate, nominations not acted upon by the 107th Congress at the time of recess are returned.  By returning his name, the Senate has effectively withheld confirmation of the applicant to assume the higher grade.  Without Senate confirmation, no Reserve officer promoted to the grade of colonel or above may hold the higher grade.

A complete copy of the ARPC/DPB evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 6 Sep 02 for review and response.  As of this date, no response has been received by this office (Exhibit D).

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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 applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility (OPR).  A review of the available evidence reveals that although the applicant was selected for promotion to the grade of colonel by the FY01 Air Force Reserve Colonel Promotion Selection Board, the Senate essentially withheld confirmation of the applicant to assume the higher grade by returning his nomination without action.  We note that without Senate confirmation, no Reserve officer promoted to the grade of colonel or above may hold the higher grade.  Furthermore, no evidence has been presented which would lead us to believe that were the applicant’s nomination resubmitted, it would be confirmed by the Senate.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the OPR and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

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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 AFBCMR Docket Number 02-02371 in Executive Session on 25 Feb 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jul 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPB, dated 27 Aug 02.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Sep 02.