RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01218
		INDEX NUMBER:  131.00
	XXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The referral Officer Performance Report (OPR) rendered on him for the period 26 Jun 00 to 22 Feb 01 be voided and removed from his records.

The OPR rendered on him for the period 23 Feb 01 through 22 Feb 02 be included in his Officer Selection Record (OSR) for the fiscal year (FY) 2003 Line and Health Professions Lieutenant Colonel Selection Board.

The Letter of Reprimand (LOR) he received dated 9 Feb 01 be removed from his OSR.

He be promoted to the grade of lieutenant colonel or in the alternative be considered for promotion to lieutenant colonel by special selection board (SSB) for the FY03 Line and Health Professions Lieutenant Colonel Selection Board with his record corrected as indicated above.

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APPLICANT CONTENDS THAT:

His personnel file was incomplete for two promotion boards.  The letter of rebuttal that he wrote to the referral OPR was not included in his personnel file and the OPR rendered on him closing 22 Feb 02 was not included in his OSR for the FY03 Line and Health Professions Lieutenant Colonel Selection Board, which convened in Jun 02.

He was involved in an incident where he and eight others did not return to duty until approximately one-half hour before the end of the workday after they had been released for lunch.  He accepts that he should have been punished, but does not believe that the incident should have ended his career.

He was the only major (O-4) out of four involved in the incident who was given a referral OPR and LOR.

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

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STATEMENT OF FACTS:

The applicant’s Total Federal Commissioned Service Date is 12 Jun 82.  He served on active duty in the Air Force until 28 Aug 98.  He transferred to the Air Force Reserves on 29 Aug 98 in the grade of major.  On 9 Feb 01, the applicant was issued a Letter of Reprimand (LOR) for inappropriate conduct, consisting of remaining at a Hooters Restaurant for over four hours during the Unit Training Assembly, during which time he and other officers drank excessively, were loud and disorderly, openly and repeatedly used, or allowed other junior officers to use, profane language in a public establishment in the presence of other patrons, including minor children, and created a disturbance that resulted in complaints by other patrons in the restaurant.  On  16 Feb 01, the applicant acknowledged receipt and understanding of the LOR and indicated that he did not intend to submit a response to it.  On 16 Feb 01, the applicant’s squadron commander notified him that his senior rater would decide if the LOR would be filed in his Officer Selection Record (OSR) and of his right to submit matters within three duty days for the senior rater to consider.  The applicant acknowledged receipt and indicated that he intended to submit a response, but waived his right to three duty days to respond.  On 20 Feb 01, the senior rater decided to file the LOR in the applicant’s OSR.

A resume of the applicant’s OPRs in the Reserves follows:

	Closeout Date			Overall Rating

	  25 Jun 99			Meets Standards
	  25 Jun 00			Meets Standards
	 *22 Feb 01			Does Not Meet Standards
	  22 Feb 02			Meets Standards
	  22 Feb 03			Meets Standards

*  Contested Referral OPR

The Referral OPR closing out 22 Feb 01 was referred to the applicant on 29 May 01.  The applicant indicated that he would submit documentation in response to the Referral OPR within     30 days.  The applicant’s response is undated.  The Referral OPR was filed in the applicant’s OSR on 23 Jul 01.  On 11 Mar 03, the Evaluation Reports Appeal Board (ERAB) denied the applicant’s appeal to void the report.

The applicant was considered and not selected for promotion to lieutenant colonel by the FY02 Line and Health Professions Lieutenant Colonel Selection Board, which convened in Jun 01, and by the FY03 board, which convened in Jun 02.  The applicant received a “Do Not Promote This Board” promotion recommendation for the FY02 Board and the LOR he received was included in his OSR.  The Referral OPR was not included in his OSR for the FY02 board.  The applicant received a “Definitely Promote” promotion recommendation for the FY03 Board.  The LOR and Referral OPR were included in his OSR.  However it is not clear as to the date the applicant’s response to the Referral OPR was included in the file.

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AIR FORCE EVALUATION:

ARPC/DPB recommends denial of the applicant’s request to remove the Referral OPR from his record.  They also indicate that the applicant’s rating chain could have requested that the LOR be removed from his record anytime after the FY02 promotion board.  They indicate that they will award the applicant an SSB in lieu of the FY03 promotion board based on the OPR closing 22 Feb 02 not being included in his file and also based on the missing rebuttal to the Referral OPR.  If the applicant is not selected for promotion, he will be separated.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, the applicant indicates that he takes full responsibility for his actions and regrets making one bad decision.  He believes that his infraction was minor and he was unfairly punished.  Other members of equal grade were not punished and will meet their boards with clean records.  The applicant provides much of the same information that he included with his original application.  He has amended his request to ask for supplemental promotion consideration with a clean record vice being directly promoted.  The applicant indicates that he is aware that there have been no illegal actions in the administration of the punishment he received.  However, he feels a gross injustice has been done and that he did nothing to warrant individual punishment of this severity while others received none.

The applicant’s complete submission is at Exhibit E.

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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 failed to provide sufficient evidence to support his contention that the LOR and Referral OPR he received were unfair and disproportionate when compared to that received by the other officers of the same grade involved in the incident in question.  The applicant’s arguments would have been more compelling had he provided support or an explanation from his rating chain or independent corroboration such as an Inspector General (IG) report.  The Board notes that ARPC indicates that they will award the applicant a special selection board for the FY03 Line and Health Professions Lt Colonel Selection Board due to his records not containing the OPR rendered on him closing 22 Feb 02 and his rebuttal to the Referral OPR closing 22 Feb 01.  While the applicant’s promotion opportunity may be questionable with the LOR and Referral OPR still included in his OSR, based on the evidence of record, we do not find the actions of his commander, albeit harsh, to be arbitrary or capricious.  As such the Board finds no basis to grant the applicant any further relief than that determined appropriate by HQ ARPC.

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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 BC-2003-01218 in Executive Session on 4 September 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/DPB, dated 12 May 03.
    Exhibit D.  Letter, SAF/MRBR, dated 23 May 03.
    Exhibit E.  Letter, Applicant, dated 24 Jun 03.