RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-01982
            INDEX CODE:  110.00
            COUNSEL:  MR. WILLIAM J. MORIN

            HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

The AFR 39-30 (Administrative Demotion of Airmen)  action  be  removed  from
his military record.
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APPLICANT CONTENDS THAT:

His demotion was unjustified and he was not counseled prior  or  during  his
probationary period.

In support of the applicant’s appeal, he provides a copy of  his  on-the-job
training record, copies of promotion orders, demotion order,  award  of  the
Good Conduct Medal and an indorsement letter from the DAV.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 20 October 1950, the applicant contracted his initial enlistment  in  the
Regular Air Force in the grade of private first class (E-2).  At that  time,
he was credited with prior service in the U.S.  Navy  Reserve  from  19 July
1943 through 19 October 1950, when he was discharged in  the  grade  of  F1C
(Fireman).  While a member of the U.S. Navy Reserve,  he  served  on  active
duty from 19 July 1943 to 31 March 1946.

Prior to the events under review, the applicant was  progressively  promoted
to the grade of airman first class (E-4) on 1 August 1953 and thereafter  to
the grade of staff sergeant (E-5), effective and with a date of  rank  of  1
October 1955.

On 29 August 1957, the applicant’s commander notified the applicant  of  his
intent to recommend his demotion to the grade of airman  first  class  (E-4)
based on his attitude and his failure to  fulfill  his  responsibilities  of
proficiency and leadership commensurate with the grade  of  staff  sergeant.
The applicant was advised of  his  rights  in  the  matter.   The  applicant
acknowledged receipt and according to an indorsement by the  commander,  was
provided clarification of the grounds for the commander’s recommendation.

On 2 October 1957, a Board of Officers was convened to consider whether  the
applicant should be demoted.  The applicant appeared before  the  board  and
was represented by counsel.  After hearing the testimony and  reviewing  the
evidence, including the applicant’s  oral  and  written  presentations,  the
board found that the applicant had  failed  to  maintain  the  qualities  of
leadership required of a staff sergeant and recommended  he  be  reduced  to
the grade of airman first class. The board’s recommendations  were  approved
and on 21 October  1957,  orders  were  issued  announcing  the  applicant’s
demotion to the grade of airman first class (E-3) with a date of rank  of  1
August  1953.   The  record  reveals  that  the  applicant   was   counseled
concerning the demotion and his right to seek redress according  to  Article
138, UCMJ.   The  file  contains  no  further  information  concerning  this
matter.

Subsequent to that time, the applicant continued  to  enlist  and  serve  on
active duty.  He was again promoted to the grade of staff sergeant (E-5)  on
1 February 1963 and to the grade of technical sergeant  (E-6)  on  1  August
1968.  He was honorably relieved from  active  duty  on  30  June  1969  and
retired in the grade of technical sergeant on 1 July 1969.   He  had  served
21 years, 4 months and 23 days on active duty.   Service  for  pay  purposes
was 24 years, 9 months and 2 days.

On 28 January 1959 and 26 February 1960, the Air Force Board for  Correction
of  Military  Records  considered  and  denied  similar  requests   by   the
applicant.

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AIR FORCE EVALUATION:

The Enlisted Promotion and Military Testing  Branch,  AFPC/DPPPWB,  reviewed
this  application  and  recommends  the  applicant’s  request   be   denied.
AFPC/DPPPWB  indicates  that  the  applicant  has  failed  to  provide   any
rationale for the delay in filing an application for the  alleged  error  or
injustice that occurred almost 44 years ago.   AFPC/DPPPWB  states  that  in
addition to the application being untimely,  the  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.  AFPC/DPPPWB asserts  that  the  delay  regarding  this
application dating back almost 44 years has greatly complicated its  ability
to  determine  the  merits  of  the  applicant’s  position.   Although   the
applicant claims the demotion was  unjustified  and  he  was  not  counseled
prior to or during the probationary period,  statements  in  the  case  file
from his supervisors and others (that  were  provided  the  demotion  board)
indicate he was counseled on his deficiencies many times (See Exhibit C).
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and  in  response  indicated
that his untimeliness for filing an application was due to  extreme  duress.
He states he was never a disciplinary problem and  the  harshest  method  of
discipline was taken against him.

Applicant’s complete response is attached at Exhibit E.
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THE BOARD CONCLUDES THAT:

Insufficient  relevant  evidence  has  been  presented  to  demonstrate  the
existence of probable error or injustice.  Evidence has not  been  presented
which would lead us to believe that the contested disciplinary action  taken
against the applicant was  improper.   It  appears  that  the  crux  of  his
argument is his allegation that he was not  counseled  on  his  shortcomings
prior to or during the  probationary  period.   He  provides  no  convincing
evidence to support this claim.  The action taken by his  commander  appears
to have been within  his  discretionary  authority  and  the  applicant  was
afforded due process.  We are in  complete  agreement  with  the  Air  Force
assessment on this matter and adopt their conclusions  as  our  findings  in
this case.  The applicant’s contentions have been duly  noted.   Other  than
his own self-supportive statements, neither does the record reveal  nor  has
he provided any documentary evidence, which  successfully  refutes  the  Air
Force opinion concerning the propriety of the actions  taken.   Accordingly,
we are not inclined to favorably consider the applicant’s request.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 this application in  Executive
Session on 10 January 2002, under the provisions of AFI 36-2603:

     Ms. Barbara A. Westgate, Chair
     Mr. Thomas S. Markiewicz, Member
     Mr. Benedict A. Kausal IV, Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 28 June 2001 w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPWB, dated 7 August 2001.
     Exhibit D.  Letter, SAF/MIBR, dated 24 August 2001.
     Exhibit E.  Letter, Applicant, dated 30 August 2001.




                                  BARBARA A. WESTGATE
                                  Chair