RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00070
		INDEX NUMBER:  105.00
	XXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His dismissal from service by sentence of court-martial be reversed and he be allowed to retire from the Air Force in a lower grade.

It appears that the applicant wants the referral Officer Performance Report (OPR) rendered on him closing 5 Sep 95 voided and removed from his records.

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APPLICANT CONTENDS THAT:

The sentence was unjust in that it took away his property (retirement and medical benefits) and ability to be employed.  The record of his court-martial reflected that his additional rater endorsed the referral OPR the same day that the rater signed it in violation of Air Force Regulations 36-10 that requires that a ratee be given ten days to appeal.  He was never informed of the referral OPR and not given a chance to appeal it.

By not being allowed to appeal his OPR, he was denied his rights to free speech and to petition the Government as stated in the first amendment to the constitution.  Further, he had over 20 years of superb service.

In many cases similar to his, officers are allowed to retire at the lower grade.  Although he submitted an application, he was not allowed to retire.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 11 Jul 75.  A resume of the applicant’s last ten OPRs follows:

	Closeout Date			Overall Rating

	  4 May 89			Meets Standards
	 29 Jun 90			Training Report
	 25 May 91			Meets Standards
	 25 May 92			Meets Standards
	 25 May 93			Meets Standards
	 10 Jan 94			Meets Standards
	 10 Jan 95			Meets Standards
	 *5 Sep 95			Does Not Meet Standards
	 31 May 96			Does Not Meet Standards
	 14 Sep 96			Does Not Meet Standards

*  Contested Report

The applicant, while serving in the grade of lieutenant colonel, was tried by General Court-Martial from 10 through 13 Apr 96 for violation of Article 133 for wrongfully, dishonorably, and without authority, fabricating an OPR on himself and with intent to deceive, tendered it in an attempt to have it placed in official channels to replace a less favorable report for the same period.  The applicant was found guilty and sentenced to dismissal from service.

Additional facts pertaining to this application are found in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C, D, and E.

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AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial of the applicant’s request to void his OPR closing 5 Sep 95.  They are not sure why the applicant states that he was not given ten days to appeal the report since the applicant’s indorsement to the referral memorandum clearly reflects that the report was referred to him on 3 Oct 95 and the additional rater completed his indorsement on 13 Oct 95.  The applicant was afforded 10 calendar days to provide comments to the rater as directed by AFR 36-10, paragraph 3-12D.  Therefore the proper referral procedures were followed.

The complete evaluation is at Exhibit C.

AFLSA/JAJM recommends denial of the applicant’s request to reverse his dismissal by sentence of court-martial.

The fabrication of a Field Grade Officer Performance Report and the attempt to place it in official channels is a serious offense.  As such, a general court-martial was an appropriate forum.  His court-martial was properly conducted and he was afforded all the rights accorded by law.  The sentence was well within the legal limits and the dismissal was an appropriate punishment for the offenses committed.  The findings of guilty and the sentence of dismissal were affirmed upon appellate review.

The evidence presented by the applicant is insufficient to warrant setting aside the dismissal, and does not demonstrate an equitable basis for relief.  The applicant has not provided any evidence of a clear error or injustice related to the sentence.  Therefore, there is no reason required by law to grant the relief requested.

The complete evaluation is at Exhibit D.

AFPC/DPPRRP addresses processing of the applicant’s request for retirement.  They recommend denial of his request to be granted retirement.  No injustices or irregularities occurred in the processing of this case.  Applicant’s request for retirement was considered and denied by the Secretary of the Air Force.

The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 30 Aug 02 for review and comment within 30 days.  To date, a response has not been received.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The Board notes the recommendation by AFPC/DPPPE that the indorsement to the referral memorandum, the AF Form 77, and the commander’s additional comments be certified as true copies.  However, it has been subsequently determined that this recommendation was in error and that the subject documents are part of the applicant’s officer selection record.  Therefore, in the absence of evidence to the contrary, we find 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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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 02-00070 in Executive Session on 30 January 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Jan 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPE, undated.
    Exhibit D.  Memorandum, AFLSA/JAJM, dated 17 May 02.
    Exhibit E.  Memorandum, AFPC/DPPRRP, dated 23 Aug 02,
                w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 30 Aug 03.