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AF | BCMR | CY2002 | 0103514
Original file (0103514.doc) Auto-classification: Denied

                            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

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