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


IN THE MATTER OF:      DOCKET NUMBER:  98-02793

            COUNSEL: THOMAS E. MARTIN

            HEARING DESIRED:  YES



RESUME OF CASE:

The applicant was commissioned a  second  lieutenant,  Army  of  the  United
States (AUS) on 30 June 1943.

In  April  1944,  while  stationed  in  New  Guinea,   the   applicant   was
hospitalized for severe headaches and extreme nervousness for  a  period  of
several months.

On 7 May 1944, the applicant was recommended for promotion to the  grade  of
first  lieutenant  by  the  commander  based   on   demonstrated   excellent
performance as a combat pilot.

The applicant was promoted to the temporary grade of first lieutenant,  AUS,
effective and with date of rank of 1 June 1944.

On 20 June 1944, the applicant returned to the United States.

The applicant was again hospitalized in December 1944 until  13 April  1945,
on which date he met  an  Army  Retiring  Board,  which  recommended  he  be
released from active duty by reason of physical disability.

On 28 April 1945, the applicant was involuntarily relieved from active  duty
in the grade of second lieutenant, and disability retired on 29 April  1945.
 He completed 2 years, 7 months and 6 days of active service.

On 28 June 1945, the Adjutant General’s Office,  citing  Special  Order  No.
151, dated 1 June 1944,  noted  that  applicant’s  separation  documentation
should be corrected to reflect the grade of  first  lieutenant.   Therefore,
Special Order 156, dated 30 June 1945, directed that applicant’s  separation
paperwork be amended to reflect his grade as first lieutenant,  rather  than
second lieutenant and his active  duty  pay  was  adjusted  to  reflect  the
change.

The applicant’s file was  reviewed  by  the  Air  Force  Military  Personnel
Center, Office of Disability Retirements  on  3 May  1979.   Based  on  this
review an AFPMC Form 69, Certification of Information  for  Retirement  Pay,
was completed which listed the  applicant’s  active  duty  grade  as  second
lieutenant, his grade for retirement pay purposes as first  lieutenant,  and
his disability rating as 30%. However, the  remarks  section  contained  the
statement, “CERTIFIED FOR RETIRED PAY BENEFITS AS A SECOND LIEUTENANT."

On 5 November 1981,  the  Board  considered  applicant’s  request  that  his
records be corrected to reflect his grade as first lieutenant,  rather  than
second  lieutenant,  and  he  receive  retroactive  pay.   The  Board  found
insufficient evidence of error or injustice and denied the application.

On 10 February 1999, the  Board  considered  applicant’s  request  that  his
records be corrected to reflect his grade as first  lieutenant.   The  Board
found insufficient  evidence  of  an  error  or  injustice  and  denied  the
application (Exhibit A through D).

On  15  November  1999,  the  applicant  requested  reconsideration  of  his
application (Exhibit E); however, on 27  January  2000,  the  applicant  was
advised that his request did not meet the criteria  for  reconsideration  by
the Board (Exhibit F).

On 24 May 2000, the applicant’s counsel  requested  reconsideration  of  the
appeal, and provided additional documentation (Exhibit G).


AIR FORCE EVALUATION:

The Senior Attorney-Advisor, AFPC/JA, reviewed the  application  and  states
that during the 54 years between  the  alleged  error  and  the  applicant’s
request for relief, a number of instances have occurred  which  should  have
put the applicant on notice to remedy his situation.   His  failure  to  act
with due  diligence  greatly  hinders  the  Air  Force  in  its  ability  to
adequately analyze what has happened in his case.  Apparently  they  do  not
have a complete set of records upon which to make an adequate  determination
- undoubtedly due to the passage of time.   Moreover,  the  same  issue  was
reviewed 25 years ago by the Office of Disability Retirement who  determined
the   applicant’s   retirement   rank   should   be    second    lieutenant.
Unfortunately, they are unable to establish what  prompted  the  review  and
what factors entered into the  determination  to  maintain  the  applicant’s
retirement rank as a second lieutenant.  Nonetheless, it must be  given  due
deference as administrative agencies are presumed  to  have  acted  properly
and in accordance with the law.  While it appears the record  points  to  an
error, it is  important  to  note  that  the  record  is  incomplete.   Many
documents are  unavailable  that  could  shed  valuable  light  on  why  the
applicant’s pension has been based on the grade of second  lieutenant.   The
applicant ultimately bears the burden  of  substantiating  his  claim.   The
government  is  left  with  an  incomplete  record  and  is  at   a   severe
disadvantage after the passage of some 50 years.  At this  point,  the  most
they could do would be to speculate that an error  occurred;  however,  they
do not believe the Board should correct  55  years  of  retirement  benefits
based on speculation.  While the applicant alleges an  error,  they  cannot,
based on  the  available  evidence,  definitively  conclude  that  an  error
occurred in the applicant’s retirement  grade.   Therefore,  they  recommend
the  application  be  denied   due   to   insufficient   documentation   and
untimeliness.   However,  if  the   Board   believes   the   applicant   has
sufficiently documented his request, it would not be inappropriate to  grant
relief.

A complete copy of the evaluation is attached at Exhibit H.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the evaluation and states that there is  no
question the resolution of a 55-year-old administrative error rises  to  the
level of shocking the conscience and that a review  of  the  merits  of  the
request should determine that an injustice has occurred.   Counsel  contends
that sufficient documentation has been provided to positively conclude  that
an error did occur  in  the  certification  of  the  applicant’s  retirement
grade.

Counsel’s complete response is at Exhibit J.


THE BOARD CONCLUDES THAT:

Sufficient  relevant  evidence  has  been  presented  to   demonstrate   the
existence of probable error or injustice.  In this respect, we note that  in
1945  the  applicant  was  disability  retired  in  the  grade   of   second
lieutenant.  Later that same year his separation documents were  amended  by
the Adjutant General’s Office to reflect  the  grade  of  first  lieutenant.
However, in 1979, the Office of Disability  Retirement  completed  an  AFPMC
Form 69, Certification of Information for Retirement Pay, which  listed  his
active duty grade  as  second  lieutenant,  his  grade  for  retirement  pay
purposes as first lieutenant, and his disability  rating  as  30%.  However,
the remarks section contained the  statement,  “CERTIFIED  FOR  RETIRED  PAY
BENEFITS AS A SECOND LIEUTENANT."  It is not clear what prompted the  review
and what factors entered into the determination to maintain the  applicant’s
retirement grade as a second lieutenant; however, given the expanse of  time
(34 years) from the date of applicant’s retirement to the date of the  AFPMC
Form 69, and considering the lack of any  written  rationale  or  supporting
documentation to support the  determination,  we  believe  sufficient  doubt
exists as to the  accuracy  of  this  determination.   Although  the  Senior
Attorney-Advisor (AFPC/JA) states  that  due  deference  must  be  given  as
administrative  agencies  are  presumed  to  have  acted  properly  and   in
accordance with the law, he does concede the record points to an error.   In
view of  the  above,  and  based  on  the  applicant’s  promotion  to  first
lieutenant prior to his retirement, we believe he  should  be  provided  the
requested relief.  Therefore, we recommend his records be corrected  to  the
extent indicated below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a.    On 29 April 1945, he was permanently retired  in  the  grade  of
first lieutenant by reason of physical disability rated at 30%.

      b.    AFPMC Form 69, dated  3  May  1979,  be  amended  in  Block  16,
Remarks, by replacing the sentence, “CERTIFIED FOR RETIRED PAY  BENEFITS  AS
A SECOND LIEUTENANT,” with “CERTIFIED FOR RETIRED PAY BENEFITS  AS  A  FIRST
LIEUTENANT.”


The following members of the Board considered this application in  Executive
Session on 13 December 2000, under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Vice Chair
                  Mr. Daniel F. Wenker, Member
                  Ms. Marcia J. Bachman, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 11 Dec 96, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPD, dated 9 Nov 98.
      Exhibit D.  Letter, SAF/MIBR, dated 23 Nov 98.
      Exhibit E.  Letter, Counsel, dated 15 Nov 99, w/atchs.
      Exhibit F.  Letter, AFBCMR, dated 27 Jan 00.
      Exhibit G.  Letter, Counsel, dated 24 May 00, w/atchs.
      Exhibit H.  Letter, AFPC/JA, dated 10 Oct 00.
      Exhibit I.  Letter, AFBCMR, dated 12 Oct 00.
      Exhibit J.  Letter, Counsel, undated, w/atchs.




             BARBARA A. WESTGATE
                                  Vice Chair






AFBCMR 98-02793




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 APPLICANT, be corrected to show that:

            a.   On 29 April 1945, he was permanently retired in the grade
of first lieutenant by reason of physical disability rated at 30%.

            b.   AFPMC Form 69, dated 3 May 1979, be amended in Block 16,
Remarks, by replacing the sentence, “CERTIFIED FOR RETIRED PAY BENEFITS AS
A SECOND LIEUTENANT,” with “CERTIFIED FOR RETIRED PAY BENEFITS AS A FIRST
LIEUTENANT.”



                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency