RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-03514
INDEX CODE: 110.00
APPLICANT COUNSEL: None
SSN HEARING DESIRED:
_________________________________________________________________
APPLICANT REQUESTS THAT:
He receive back pay for his promotion to staff sergeant (SSgt).
_________________________________________________________________
APPLICANT CONTENDS THAT:
All flying personnel were to have a SSgt rating or higher but all
during combat he was a sergeant. He was informed his promotion was
not accomplished because he was detached from his unit. He was
promoted to SSgt before he was discharged but lost two years of higher
pay.
Applicant's complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant entered active duty in the Army US (Air Corp) on 19 Nov
42 in the grade of private.
HQ AFPC/DPW confirmed he was a Prisoner of War (POW) from 22 Feb to 4
May45. He was promoted to SSgt after his repatriation and was
honorably discharged in this grade on 30 Oct 45.
_________________________________________________________________
AIR STAFF EVALUATION:
AFPC/DPPPWB states the applicant has not filed his claim a within the
3-year time limit. The applicant's request can 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 56 years after his discharge to file and
there is no evidence in the available records to indicate that he may
have filed a previous claim. The applicant has not stated when he
discovered the alleged error or injustice or why he waited so long to
request relief. The applicant's delay in filing a claim has caused
prejudice to the Air Force. Based on the passage of time relevant
records have been destroyed or are no longer available, memories have
failed and witnesses are unavailable. The applicant's delay regarding
his promotion has complicated the Air Force's ability to determine the
merits of his position.
The applicant contends his promotion to SSgt should have been
effective on 23 Feb 44, but he was shot down and captured on 22 Feb
44. There were provisions (Mil Pers Div Msg dated 2259 21 Sep 45)
to promote former POWs one grade when they were liberated, provided
they were a POW for more than 18 months or longer. The applicant was
a POW for less than 18 months and therefore, his promotion was not
based on him being a POW.
DPPPWB further states the Air Force, after 56 years and limited
records, cannot determine if the applicant should have been promoted
earlier than he was. They must assume that his supervisors and
commanding officers at the time were in a better position to determine
the appropriate promotion effective date. Therefore based on the
rationale provided they recommend denying the applicant’s request
(Exhibit D).
_________________________________________________________________
APPLICANT'S REVIEW OF AIR STAFF EVALUATION:
The applicant reviewed the Air Force evaluation and states until a few
months ago, he was not aware of the fact that he could request a
correction of his military records. He further states that he was
promoted at the time of his discharge and the promotion was not
affiliated with his flying years, the practice at that time was to
promote each enlisted man one grade at time of discharge (Exhibit F).
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. We took notice of the
applicant’s complete submission in judging the merits of the case;
however, we agree with the opinion and recommendation of the Air Force
and adopt their rationale as the basis for our conclusion that the
applicant has not been the victim of an error or injustice. In this
respect, the Board believes the applicant's chain of command was in
the best position to determine the applicant's promotion effective
date. The applicant has not provided sufficient documentation to
establish that he should have been promoted on an earlier date. In
view of the foregoing and in the absence of evidence to the contrary,
we find no compelling basis to recommend granting the relief sought in
this application.
_________________________________________________________________
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.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number 01-
03514 in Executive Session on 28 March 2002, under the provisions of
AFI 36-2603:
Mr. Richard A. Peterson, Panel Chair
Mr. Roscoe Hinton, Jr., Member
Mr. James E. Short, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 6 Dec 01, w/atchs.
Exhibit B. Available Master Personnel Records.
Exhibit C. Letter, AFPC/DPW, dated 23 Jan 02, w/atchs.
Exhibit D. Letter, AFPC/DPPPWB, dated 6 Feb 02.
Exhibit E. Letter, SAF/MRBR, dated 1 Mar 02.
Exhibit F. Applicant's Response, dated 10 Mar 02.
RICHARD A. PETERSON
Panel Chair
Promotion boards selected individuals and the quotas received determined the number that could be promoted. They recommend the applicant's request be time barred or denied on its merits (Exhibit C). _________________________________________________________________ APPLICANT'S REVIEW OF AIR STAFF EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 6 September 2002, for review and response.
The applicant's delay in filing a claim has caused prejudice to the Air Force. DPPPWB further states the Air Force, after 56 years and limited records, cannot determine if the applicant should have been promoted. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.
In support of his request, the applicant submits a personal statement and copies of his internment papers, dated 20 Jun 44, showing his grade as sergeant, Special Orders #121, dated 1 Dec 44, showing his grade at release from Sweden as private, his WD AGO Form 53-55 (Enlisted Report and Report of Separation) and his discharge certificate (Exhibit A). The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared...
In support of his request, the applicant submits a personal statement and copies of his internment papers, dated 20 Jun 44, showing his grade as sergeant, Special Orders #121, dated 1 Dec 44, showing his grade at release from Sweden as private, his WD AGO Form 53-55 (Enlisted Report and Report of Separation) and his discharge certificate (Exhibit A). The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared...
DPPPWB further states the Air Force, after 56 years and limited records, can not determine if the applicant should have received a promotion prior to his separation from the service. Therefore, based on the rationale provided they recommend denying the applicant’s request (Exhibit D). We believe it should be pointed out that the applicant may have been deserving of a promotion but in the absence of evidence to the contrary, the Board must assume the applicant was discharged in the...
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