RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01972
		                (CASE 3)

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His nonselection for promotion to the grade of major by the Calendar Year 2003B (CY03B) Major Central Selection Board be set aside.

By amendment, he be directly promoted to the grade of major.

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APPLICANT CONTENDS THAT:

He was considered by the CY03B board with errors in his records that should have been removed as a result of the correction of his records by the Air Force Board for Correction of Military Records (AFBCMR).  He believes a clear injustice has been done and he deserves a fair opportunity for consideration for promotion by a selection board as an in-the-promotion zone (IPZ) candidate.

In support of his appeal, the applicant provided a personal statement and documentation pertaining to the correction of his records.

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 the applicant is currently serving on active duty in the grade of captain, having been promoted to that grade on 11 Aug 99.  His Total Active Federal Military Service Date (TAFMSD) is 16 Sep 85.

On 14 Mar 02, the Board considered applicant’s request that an Article 15 imposed on 23 Sep 98 be set aside and removed from his records, and his OPR closing 15 Mar 99 be amended.  The Board recommended the Article 15 and OPR be removed from his records, which was accepted by the Director, Air Force Review Boards Agency.

Applicant's Officer Performance Report (OPR) profile follows:

	PERIOD ENDING	EVALUATION

	28 Aug 96	Meets Standards
	15 Mar 97	Meets Standards
	15 Mar 98	Meets Standards
	15 Mar 99                 Removed by Order of Chief of Staff
	15 Mar 00	Meets Standards
	 1 Feb 01	Meets Standards
	 1 Feb 02	Meets Standards
  #	 1 Feb 03	Meets Standards

# Top Report at the time he was considered and nonselected for promotion to the grade of major by the CY03B Major Board.

On 24 May 04, the applicant was considered for promotion to the grade of major by a Special Selection Board (SSB) for the CY03B Major Board; however, the results are still pending.

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AIR FORCE EVALUATION:

AFPC/DPPPO recommended denial noting the AFBCMR had directed an Article 15 and referral OPR be removed from the applicant’s records.  They further noted the applicant was considered by the CY03B Major Board with those documents in his officer selection record (OSR).  They stated they were unable to determine why those documents were still a matter of record.

According to AFPC/DPPPO, on 24 May 04, the applicant was considered for promotion to the grade of major by an SSB without the Article 15 and referral OPR in his OSR.  Therefore, he has had a fair consideration for promotion.  They do not believe the removal of the nonselection would serve any purpose, as the applicant’s date of rank (DOR) would still make him appear   above-the-promotion zone (APZ) when he is considered by the CY04 Major Board.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response indicating he does not believe he has been given fair consideration even though he was granted an SSB. In his view, he has been unfairly considered for promotion by both the CY03B Major Board and the SSB because his superiors have been exposed to his false records for five years which has undoubtedly shed negative light upon him.  He asks that the Board set aside his nonselection and directly promote him to major, especially since his DOR will make him appear APZ.  With his APZ status, he does not believe he will ever be treated equally.

Applicant’s complete response, with attachments, is at Exhibit E.

By letter, dated 5 Aug 04, the applicant provided additional documentary evidence for the Board’s consideration, which is attached 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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, the majority of the Board does 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 as a result of a previous appeal to the Board, an Article 15 and an OPR were removed from his records.  Notwithstanding the correction of his records, the applicant was considered for promotion to the grade of major with those documents in his OSR.  He was not selected for promotion.  However, he was subsequently granted an SSB without the documents in his record.  Therefore, the majority is of the opinion he was afforded fair and equitable consideration by a duly constituted SSB.  The majority is aware of a recent court decision wherein the court ruled procedures established by the Air Force allow the SSBs to make a “reasonable determination as to whether the officers would have been selected if the pertinent records had been properly considered by the board unfettered by material error.  Further, the majority notes that officers compete for promotion under the whole person concept whereby many factors are carefully assessed by selection boards.  An officer may be qualified for promotion but, in the judgment of a selection board vested with the discretionary authority to make the selections, may not be the best qualified of those available for the limited number of promotion vacancies.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, the majority agrees with the recommendation of the OPR and adopt their rationale as the basis for their decision the applicant has failed to sustain his burden of establishing he has suffered either an error or an injustice.  Accordingly, the majority finds no compelling basis to recommend granting the relief sought in this application.

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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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered AFBCMR Docket Number BC-2004-01972 in Executive Session on 4 Aug 04 and 18 Aug 04, under the provisions of AFI 36-2603:

By a majority vote, the Board voted to deny the application.  Mr. xxxxx voted to grant the appeal to promote the applicant but did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPO, dated 1 Jul 04.
    Exhibit D.  Letter, SAF/MRBR, dated 9 Jul 04.
    Exhibit E.  Letter, applicant, dated 14 Jul 04, w/atchs.
    Exhibit F.  Letter, applicant, dated 5 Aug 04, w/atch.

AFBCMR BC-2004-01972

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
			FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT, SSAN

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.