RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-03136
            INDEX NUMBER:  131.00
      XXXXXXXXXXXXXXX  COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to the rank of master sergeant (MSgt) (E-7)  effective  1
Sep 93 or later, but not later than 1999, with back pay.

His retirement grade be changed to MSgt and he be given credit for  over
22 years for pay purposes since promotion to  MSgt  requires  two  years
retainability.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He only got to test for promotion to master sergeant one time before  he
was forced to retire due to the high year of tenure (HYT) for  technical
sergeants (TSgt) (E-6) being changed from 23 years to 20 years.  He  was
not able to study for promotion because he had been forced to leave  his
wife, whom he had only been married to for one day,  behind  when  Mount
Pinitubo erupted in the Philippines.  He focused all of  his  energy  on
correcting the injustice of leaving her behind and getting  her  to  the
states to join him.

The applicant’s complete submission, with attachments, is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 3 Jan 73.  He retired with 20
years of service effective 1 Feb 93 due to having reached  the  HYT  for
his grade of TSgt.

Additional relevant facts pertaining to this application  are  contained
in the evaluations prepared by the appropriate offices of the Air  Force
found at Exhibits C and D.

_______________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB  recommends  denial  of  the  applicant’s   requests.    The
applicant  waited  over  9  years  after  retirement   to   submit   his
application.  He gives no date as to  when  he  discovered  the  alleged
error or injustice  and  no  reason  for  is  delay  in  submitting  his
application.  Current Air Force policy  does  not  allow  for  automatic
promotion as the applicant is requesting.  The applicant had essentially
two and a half years to prepare for testing to MSgt since he  was  aware
that he would be eligible for promotion to MSgt whenever  his  promotion
to TSgt was announced.

The complete evaluation is at Exhibit C.

AFPC/DPPRRP addresses the  applicant’s  retirement  processing  actions.
They found no error or injustices in the applicant’s retirement process.
 They make no recommendation regarding the applicant’s requests.

The complete evaluation is at Exhibit D.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his first  response  to  the  Air  Force  evaluation,  the  applicant
requested that his application be temporarily withdrawn while he  waited
on the results of a freedom of information act (FOIA) request to  obtain
critical  documents.   He  also  justifies  the  late  filing   of   his
application by stating that he never knew about the AFBCMR process.   He
provides the names and numbers of individuals he claims can verify this.
 He also asserts that his participation in Operation Just Cause in FY 90
left him little time to study for promotion  testing.   He  also  states
that the point of his application is that he wanted  to  earn  his  MSgt
stripes, but was only allowed to serve 20 years.

The applicant’s complete response is at Exhibit F.

The applicant submitted a further response to his application to  update
his temporary withdrawal request and states that he is still awaiting  a
response to his FOIA request.  He again discusses how the change in  the
HYT affected his promotion opportunity to MSgt.

The complete submission is at Exhibit G.

The applicant submitted a third letter in support  of  his  appeal.   He
requests that his case be restarted.  He states that he has been advised
that his FOIA request will not be honored.   The  applicant  attaches  a
copy of his enlisted performance report to support his  contention  that
he was too busy to study for promotion testing.  He again discusses  how
the change in the HYT affected his promotion opportunity to MSgt.

The complete submission, with attachments, is at Exhibit H.

The applicant submitted another letter in reference to his  application.
It appears now that the applicant wants to be promoted to the  grade  of
chief master sergeant (CMSgt) (E-9).  The applicant again discusses  the
background of his case.  The applicant states that he  wants  two  years
pay as a CMSgt.  He believes that if he had been selected for  MSgt,  he
would have stayed and tested until he made SMSgt and then CMSgt.

The applicant’s complete submission, with attachments, is at Exhibit I.

The applicant submitted a final letter in support of his application and
provided a copy of a letter from his congressman,  a  letter  addressing
the status of his FOIA request, and an article from the Air Force  Times
that discusses the change in the HYT.

The applicant’s complete submission, with attachments, is at Exhibit J.

_______________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The application was not filed within three years after  the  alleged
error or  injustice  was  discovered,  or  reasonably  could  have  been
discovered, as required by Section 1552, Title 10,  United  States  Code
(10 USC 1552), and Air Force Instruction 36-2603.   The  applicant  does
not assert a date of  discovery,  which  would,  if  correct,  make  the
application timely.   The  essential  facts,  which  gave  rise  to  the
application, appear to have been known well before a date  of  discovery
that would make this  application  timely.   Knowledge  of  those  facts
constituted the date of discovery and the beginning  of  the  three-year
period for filing.  Thus the application is untimely.

2.  Paragraph b of 10 USC 1552 permits us, in our discretion, to  excuse
untimely filing in the interest of justice.  We have carefully  reviewed
applicant's submission and the entire record,  and  we  do  not  find  a
sufficient basis to excuse the untimely filing of this application.  The
applicant has not shown a plausible reason for delay in filing,  and  we
are not persuaded that the record raises issues of  error  or  injustice
which require resolution on the merits at this  time.   Accordingly,  we
conclude that it would not be in the interest of justice to  excuse  the
untimely filing of the application.

______________________________________________________________

DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest
of justice to waive the untimeliness.  It is the decision of the  Board,
therefore, to reject the application as untimely.

______________________________________________________________

The following members of the Board considered Docket Number 02-03136  in
Executive Session on 6 March 2003, under the provisions of AFI 36-2603:

      Mr. Joseph A. Roj, Panel Chair
      Ms. Barbara J. White-Olson, Member
      Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPWB, dated 24 Oct 02
    Exhibit D.  Memorandum, AFPC/DPPRRP, dated 21 Nov 02,
                w/atchs.
    Exhibit E.  Letter, SAF/MIBR, dated 27 Nov 02.
    Exhibit F.  Letter, Applicant, dated 9 Dec 02, w/atchs.
    Exhibit G.  Letter, Applicant, dated 6 Jan 03.
    Exhibit H.  Letter, Applicant, dated 6 Jan 03, w/atchs.
    Exhibit I.  Letter, Applicant, dated 8 Jan 03, w/atchs.
    Exhibit J.  Letter, Applicant, dated 20 Jan 03, w/atchs.




                                   JOSEPH A. ROJ
                                   Panel Chair