AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
IN THE MATTER OF:
DOCKET NO: 98-00769
COUNSEL: NONE
HEARING DESIRED: NO
AUG 2 1 I398
Applicant requests that he be promoted to the grade of Airman
Third Class (E-2) earlier than 1 February 1955. Applicant's
submission is at Exhibit A.
The appropriate Air Force office evaluated applicant's request
and provided an advisory opinion to the Board recommending the
application be denied (Exhibit C). The advisory opinion was
forwarded to the applicant for review and response (Exhibit D).
Applicant has provided a response (Exhibit E).
The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
After careful consideration of applicant's request and the
available evidence of record, we find insufficient evidence of
error or injustice to warrant corrective action. The facts and
opinions stated in the advisory opinion appear to be based on the
evidence of record and have not been adequately rebutted by
applicant.
Absent persuasive evidence applicant was denied
rights to which entitled, appropriate regulations were not
followed, or appropriate standards were not applied, we find no
basis to disturb the existing record.
Accordingly, applicant's request is denied.
The Board staff is directed to inform applicant of this decision.
Applicant should also be informed that this decision is final and
will only be reconsidered upon the presentation of new relevant
evidence which was not reasonably available at the time the
application was filed.
-
Members of the Board Mr. Thomas S. Markiewicz, Mr. Henry Romo
Jr., and Mr. Walter J. Hosey, considered this application on
19 August 1998, in accordance with the provisions of Air Force
Instruction 36-2603, and the governing statute, 10, U.S.C. 1552.
/
THOMAS S. MARKIEWICZ
Panel Chair
Exhibits :
A. Applicant's DD Form 149
B. Available Master Personnel Records
C. Advisory Opinion
D. AFBCMR Ltr Forwarding Advisory Opinion
E. Applicant's Response
-
550 C Street West, Ste 09
Randolph AFB TX 78150-4711
MEMORANDUM FOR AFBCMR
FROM: HQ AFPCDPPPWB
SUBJECT: Application for Correction of Military Records -
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS AIR FORCE P E R S O N N E L C E N T E R
RANDOLPH AIR FORCE B A S E TEXAS
3.? MAR 1198
Requested Action. The applicant is requesting he be promoted to A3C (E-2) earlier than
1 Feb 55, the date he was promoted.
Reason for Request. Applicant states he was promoted to A3C when he departed Basic
Military Training (BMT) but the promotion was denied by his commander when he arrived at his
first duty station.
- Facts. The applicant enlisted 25 Aug 53 in the grade of Airman Basic (E-l), was
promoted to A3C (E-2) 1 Feb 55, promoted to A2C (E-3) 1 Jun 56, promoted to A1C (E-4) 1 Sep
59 (A1C (E-4) redesignated Sgt (Ed)), and to SSgt (E-5) 1 Dec 68. He retired 1 Oct 73 in the
grade of SSgt.
Discussion.
s
,
a. The application has not been filed within the three year time limitation imposed by MI
36-2603, paragraph 3.5. The applicant claims that he was aware of the alleged error or injustice
3 1 Oct 53 and went to the legal office but nothing could be done. He has failed to provide any
rationale for the delay in filing an application or taking any action although he states he
discovered the alleged emor or injustice almost 45 years ago.
b. In addition to being untimely under the statute of limitations, the applicant’s
application may also be dismissed under the equitable doctrine of laches, which denies relief to
one who has unreasonably and inexcusably delayed asserting a claim. Laches consists of two
elements: Inexcusable delay and prejudice to the Air Force resulting therefrom. In the
applicant’s case, he waited almost 45 years to file and there is no indication he took any action
on the claim before that. He states although the mood of the country was to rectify an injustice,
his military and civil service careers came first. The fact is, he did nothing about the alleged
injustice €or almost 45 years.
c. Applicant’s unreasonable delay has also caused prejudice to the Air Force. Relevant
records have been destroyed or are no longer available, memories have failed, witnesses are
unavailable, the requested remedy (promotion to A3C (E-2) with back pay and allowances and
possible earlier promotion for subsequent grades) would be unconscionabl
burdensomehnworkable. The applicant has provided a copy of S
Personnel Processing Squadron dated 27 Oct 53 which reassigns
This
order reflects his grade as A3C. He did not furnish a copy of the promotion order promoting him
from AB to A3C during this time fiame but a copy of the order that promoted him to A3C
effective 1 Feb 55. The record also reflects the applicant was AWOL, 29,30, and 31 Dec 53
which may have been a reason he was not promoted prior to 1 Feb 55. In short, the Air Force
asserts that applicant’s unreasonable delay regarding a matter now dating back almost 45 years
has greatly complicated its ability to determine the merits of his position.
Recommendation. Recommend the applicant’s request be time barred. Should the Board
choose to decide the case, recommend it be denied based on its merits.
Chief Inquiries/AFBCMR Section
Enlisted Promotion & Mil Testing Br
9 8 0 0 7 6 9
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