RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  02-01892
                                             INDEX CODE:  108.09
                                             COUNSEL: None

                                             HEARING DESIRED: Yes

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APPLICANT REQUESTS THAT:

His  retired  grade  be  changed  from  “First  Lieutenant”  to  “Captain”
effective 7 September 1947.

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APPLICANT CONTENDS THAT:

He should have been promoted to the grade of Captain prior to his  release
from active duty.  Army Regulations  in  1947  provided  disabled  retired
officers a promotion to the next highest grade upon  retirement.   He  was
denied promotion to Captain due to a Letter of Reprimand (LOR) received as
a student at Peterson Field, CO.  The LOR should have  been  removed  from
his records upon leaving Peterson Field.

In  support  of  his  application,  the  applicant  provides   copies   of
documentation pertaining to  his  Army  Retiring  Board  proceedings,  his
Certificate of Service and correspondence associated with the issues cited
in  his  contentions.    The   applicant’s   complete   submission,   with
attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 30 November 1942, the applicant enlisted  in  the  Air  Force  Enlisted
Reserve in the grade of private.  He was appointed an aviation cadet on 28
January 1943.  Having successfully completed training,  he  was  honorably
discharged from enlisted status on 23 December 1943 and his appointment as
an aviation cadet was terminated.

On 24 December 1943,  the  applicant  was  appointed  a  temporary  second
lieutenant, Army of the United States (AUS), Air Corps.  He was ordered to
active duty  on  that  same  date.   Following  additional  training,  the
applicant was assigned to duties as a  B-24  bombardier  in  the  European
Theater of Operations, arriving there on 31 May 1944.  He was  wounded  by
flak while on a mission over Munich, Germany on 13 June  1944.   Following
treatment for his injuries in-theater, he was returned to the  Continental
United States on 14 September 1944.  On 5 July  1945,  the  applicant  was
promoted to First Lieutenant, AUS.

Based on the approved  findings  of  the  Army  Retiring  Board  that  the
applicant was permanently incapacitated for military  service,  that  such
incapacity was the caused by and the result of an incident of service, and
that his disability was combat incurred or the result of an  explosion  of
an instrumentality of war in the line of duty, the applicant was  released
from active duty in the grade of first lieutenant on 7 September 1947.  He
was notified that he would be certified to the Veterans Administration for
retirement benefits.  At the time of his separation, he was credited  with
3 years, 4 months and 21 days of Continental service and 3 months  and  23
days of  Foreign  Service.   He  had  participated  in  the  Rome  -  Arno
battles/campaigns and had been awarded the Distinguished Flying Cross, the
Purple Heart Medal, the European-African-Middle  Eastern  Campaign  Medal,
the American Campaign Medal, and the World War II Victory Medal.

Subsequent to the passage of the Career  Compensation  Act  of  1949,  the
applicant’s records were reviewed  and  he  was  offered  and  elected  to
receive disability retired pay in the grade of first lieutenant  based  on
the assignment of a compensable rating of 70%.

Examiner’s Note:  According to Army Regulation (AR)  605-245,  Section  V,
paragraph 28(a), any  officer  of  the  Regular  Army  who  heretofore  or
hereafter has been or may be retired for physical disability determined or
incurred while serving under a temporary appointment  in  a  higher  grade
shall have the rank and receive retired pay computed as otherwise provided
by law for such officers of such higher grade.

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AIR FORCE EVALUATION:

AFPC/DPPPO recommends the application be denied.  DPPPO  states  applicant
did not meet either the time-in-grade (TIG) or efficiency  index  required
to be eligible for a terminal leave promotion.  They also state  there  is
no documentation to show the applicant was ever recommended for promotion.
 DPPPO also mentions the application may be dismissed under the  equitable
doctrine of laches, which denies relief to one who  has  unreasonably  and
inexcusably delayed in asserting a claim.   This  unreasonable  delay  has
caused prejudice to the  Air  Force,  as  all  relevant  records  are  not
available for review.  (See Exhibit C)

AFPC/DPPD recommends the application be  denied.   DPPD  states  that  the
Department of the Air Force (DAF) reviewed this Veteran’s military records
and determined his eligibility for disability retirement with a 70 percent
disability rating in the grade of First
Lieutenant.  Applicant subsequently concurred with these  findings.   DPPD
asserts that the applicant’s military records lack evidence to  verify  he
should have been promoted to the grade of Captain  prior  to  his  release
from active duty.  The DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on  11
October 2002 for review and response.  As of this date,  this  office  has
received no response.

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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 error or injustice.  The applicant  has  provided  no  evidence
substantiating his claim that members being separated for disability at  the
end of  World  War  II  were  authorized  a  one-grade  promotion.   To  the
contrary,  available  evidence  indicates   that   members   separated   for
disability were authorized retirement in the highest  temporary  grade  held
on active duty.  Since the record does not  reveal  nor  has  the  applicant
provided any evidence showing  he  served  in  a  grade  higher  than  first
lieutenant or showing  he  was  treated  differently  from  other  similarly
situated members, we agree with the opinions and recommendations of the  Air
Force offices of primary responsibility and adopt  their  rationale  as  the
basis for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  While we are  not  unappreciative  of  the  applicant’s
accomplishments in the service of his Nation, in  the  absence  of  evidence
showing he served in a higher grade, we have no basis on which to  favorably
consider his application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

__________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of 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  Docket  No.  02-01892  in
Executive Session on 13 November 2002, under the provisions of AFI 36-2603:

                 Mr. Edward H. Parker, Panel Chair
                 Mr. Mike Novel, Member
                 Ms. Martha Maust, Member

The following documentary evidence was considered with:

    Exhibit A.  DD Form 149, dated 5 Apr 02, with attachments.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPPO, dated 18 Sep 02.
    Exhibit D.  Letter, HQ AFPC/DPPD, dated 2 Oct 02.
    Exhibit E.  Letter, SAF/MRBR, dated 11 Oct 02.




                                   EDWARD H. PARKER
                                   Panel Chair