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

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01510-2

	XXXXXXX	COUNSEL:  None

		HEARING DESIRED: Yes

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APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period 5 Feb 99 through 4 Feb 00 be declared void and removed from his records.

He be considered by special selection board (SSB) for promotion to the grade of lieutenant colonel by the CY00A Central Lieutenant Colonel Selection Board and any subsequent boards as applicable.

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RESUME OF CASE:

On 3 Oct 05, the Board reconsidered its 1 Sep 04 denial of the applicant’s requests as stated above (Exhibit I).  In a letter, dated 14 Mar 06, applicant’s counsel requests further reconsideration of the applicant’s stated requests.  In support of their current request, counsel provides what they opine is concrete proof the applicant was required a change of reporting (CRO) official OPR, which would invalidate the contested report because it included a period of time the applicant could not and should not have been rated by the rater on the contested report (Exhibit J).

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFPC/DPPPE reevaluated the applicant’s case based on the newly submitted evidence.  They again recommend denial of the applicant’s requests.

AFPC/DPPPE states that it is not completely true that the contested report is invalid because it represents a rating of time and events not part of the rating period properly ascribable to the rater of record on the contested report.  They note that the rater can only document information he was aware of and that the information is not inaccurate because of the dates on the report.  Correcting the dates on the report is an administrative correction authorized by AFI 36-2401.  AFPC/DPPPE further notes that it appears the applicant believes a rater can only complete a report for the time period he/she actually rated on a member.  AFPC/DPPPE illustrates how this is not always the case when preparing a report.  Specifically, they indicate that the days of supervision do not always conform to the period of the report.

AFPC/DPPPE states that since the letter provided by the applicant’s rater prior to the contested report did not give a specific date he departed for his next assignment, they cannot determine when or whether a CRO report was required.

The complete additional evaluation is at Exhibit K.

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

Applicant’s counsel responded to the additional advisory opinion and states that AFPC/DPPPE totally misrepresents he and the applicant’s position.  They take the view that the previous rater should have “done a CRO.”  Counsel notes that the previous rater was the applicant’s supervisor for more than 120 days (5 Feb 99 to Jul 99.  Counsel further points out that AFPC/DPPPE suggests that this period was only 117 days when it, in fact, amounted to 146 days.  Counsel states that there is no way the 120 day requirement to do a report was not met and states that the contested OPR should be expunged and the applicant considered for promotion by SSB.

Counsel’s complete response is at Exhibit M.

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SECOND ADDITIONAL AIR FORCE EVALUATION:

Based on the applicant’s counsel’s response to the additional evaluation and pursuant to the Board’s request, AFPC/DPPPEP provided a second additional evaluation to correct the previous evaluation.  They still recommend denial of the applicant’s requests.

AFPC/DPPPEP notes that they miscalculated the number of days supervision the previous rater would have had from 5 Feb 99 to    1 Jul 9.  They also concur that a CRO should have been accomplished.  However, they note that a report was not accomplished and the applicant did not provide a report to be filed in his records.  Therefore, AFPC/DPPPEP states an AF Form 77 should be filed in the applicant’s record and indicate that a report is not available for the period 5 Feb 99-1 Jul 99.

AFPC/DPPPEP next addresses the applicant’s contention the contested report contains information from outside the reporting period.  They state that the applicant’s belief that only information occurring during the period should be documented is not entirely correct.  They note that AFI 36-2402, paragraph 1.4.17 states, “Do not include events that occurred before a performance report unless it adds significantly to the evaluation report and has not been previously reported.”  They opine that information on events occurring between 5 Feb 99 and 1 Jul 99 can be placed on the contested report because it had never been documented or considered on a previous report and added significant information to the applicant’s OPR.

The complete evaluation is at Exhibit N.

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APPLICANT’S REVIEW OF SECOND ADDITIONAL EVALUATION:

Applicant’s counsel responded to the second additional evaluation.  Counsel states that there is now agreement between the Air Force Office of Primary Responsibility, he and the applicant that the period from 5 Feb 99 through 1 Jul 99 should be unrated.  The next question is what to do with the contested OPR.  Counsel opines that administratively changing the start date of the OPR does not solve the problem with the report.  The rater’s intention was to treat the report as a full year’s assessment.  Counsel asks, rhetorically, what part of the OPR is for the period 5 Feb 99 through 1 Jul 99 and was that part “significant” information.  Counsel states that they do not know and, thus, cannot challenge what they do not know.  Counsel further opines neither the previous rater nor the rater on the contested report followed the regulations and, therefore, the contested OPR is unreliable.  He states that the applicant should be given the benefit of the doubt, the OPR voided and an AF Form 77 inserted for the period.  The applicant should then be considered for promotion by SSB.

Counsel’s complete response is at Exhibit P.

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THE BOARD CONCLUDES THAT:

After again reviewing the complete evidence of record as well as the new advisories prepared by AFPC/DPPPE, a majority of the Board believes sufficient evidence has been presented to show the applicant has possibly been the victim of an error or injustice.  In reaching our decision, the Board majority notes some ambiguity in the advisories prepared by AFPC/DPPPE as to when and what type of performance report should have been rendered on the applicant.  As such, this has created some doubt in a majority of the Board regarding the correctness of the contested report.  The Board majority believes this doubt should be resolved in favor of the applicant.  Therefore, the Board majority recommends the applicant’s records be corrected as indicated below.

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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 the Officer Performance Report (OPR) rendered on him for the period 5 February 1999 through 4 February 2000 be declared void and removed from his records.

It is further recommended that the corrected record be considered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 2000A (CY00A) Lieutenant Colonel Central Selection Board and for any subsequent board for which the OPR closing 4 February 2000 was a matter of record.

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The following members of the Board reconsidered Docket BC-2004-01510-2 in Executive Session on 14 September 2006, under the provisions of AFI 36-2603:

By majority vote, the Board voted to correct the records, as recommended.  Ms. XXXX voted to deny but elected not to submit a minority report.  The following additional documentary evidence was considered:

    Exhibit I.  Addendum Record of Proceeding, w/atchs,
                dated 17 Oct 05.
    Exhibit J.  Memorandum, Counsel, dated 14 Mar 06, w/atchs.
    Exhibit K.  Memorandum, AFPC/DPPPE, dated 20 Apr 06.
    Exhibit L.  Letter, SAF/MRBR, dated 12 May 06.
    Exhibit M.  Memorandum, Counsel, dated 16 Jun 06.
    Exhibit N.  Memorandum, AFPC/DPPPEP, dated 23 Jun 06.
    Exhibit O.  Letter, AFBCMR, dated 14 Jul 06.
    Exhibit P.  Memorandum, Counsel, dated 14 Aug 06.

AFBCMR BC-2004-01510-2

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 XXXXXXX, XXXXXXX, be corrected to show that the Officer Performance Report (OPR) rendered on him for the period 5 February 1999 through 4 February 2000 be, and hereby is, declared void and removed from his records.

	It is further directed that the corrected record be considered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 2000A (CY00A) Lieutenant Colonel Central Selection Board and for any subsequent board for which the OPR closing 4 February 2000 was a matter of record.