RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03241
            INDEX CODE:  131.06

            COUNSEL:  NONE

            HEARING DESIRED:  NOT INDICATED


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show he is a prisoner of war (POW) and was
promoted to a higher grade.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was told by another pilot from his outfit that ended up in the same
prison camp compound that his promotion had come through but he  would
not receive it because he was  out  of  allied  control  and  reported
killed.

In support of the appeal, applicant submits a  personal  statement,  a
copy of his Certificate of  Service,  a  copy  of  the  aircraft  crew
position list, a picture of ID, and a copy of his Temporary WDAGO Form
66-1.   Applicant's  complete  submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty as a second lieutenant, Army of  the
United States (AUS) on 8 February 1944.   He  was  promoted  to  first
lieutenant sometime in 1946.  He was relieved from active duty  on  20
September 1946.  On 14 November 2003, AFPC/DPW  requested  applicant’s
discharge document be corrected to reflect that he was a  prisoner  of
war (POW) from 24  December  1944  to  13 May  1945.   His  Report  of
Separation reflects the award of  the  Purple  Heart  Medal,  the  Air
Medal, the American Theater Ribbon, the EAME  Theater  Ribbon  with  2
Bronze Battle Stars, the Victory Medal and 1 Overseas Service Bar.  He
is also entitled to the POW Medal, the European-African-Middle Eastern
Campaign with 3  Bronze  Service  Stars  and  the  Distinguished  Unit
Citation, which have been added to his Report of Separation.

Based on the submission of this application,  AFPC/DPW  confirmed  the
applicant was a POW from  24  December  1944  to  13  May  1945.   The
applicant was advised of the above in a letter dated 1 December 2003.

While reviewing the applicant’s records, it was discovered that  there
is an error on his DD Form 214, Certificate of  Release  or  Discharge
from Active  Duty  effective  20  September  1946.   A  DD  Form  215,
Correction  to  DD  Form  214  has  been  completed  to  correct   the
applicant’s separation document (WD-AGO Form 53-96)  to  add  the  POW
Medal for the period 24 December 1944 - 13 May 1945), European-African-
Middle Eastern Campaign w/3 Bronze Service Stars (BSS),  Distinguished
Unit Citation, and forwarded to the applicant.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO states that requirements for  promotion  were  governed  by
Army Regulation 605-12, Temporary Promotions in the Army of the United
States, 17 August 1944.  Normally, officers were not  recommended  for
promotion, nor were recommendations forwarded, or promotions  approved
by a  commander  exercising  promotion  authority  unless  a  position
vacancy existed under the jurisdiction of the commander  concerned  in
the grade to which promotion was recommended.  In  addition,  officers
were not recommended for promotion until they served the minimum time-
in-grade requirements.

Per AR 605-12, para 5(d), all commissioned officer personnel below the
grade of colonel who were returned to United States  military  control
from a status of prisoner of war and who presumably  would  have  been
promoted but for their internment, evasion, or  capture,  were  to  be
considered  for  an  immediate  one  grade  promotion   provided   the
circumstances  surrounding  the  individual’s  loss  to  the  AUS  and
subsequent conduct was honorable.  Recommendations for promotion under
provisions of this paragraph could be submitted without regard to time-
in-grade, time-in-position, or position vacancies.

DPPPO reviewed  Public  Law  106-398,  2001  NDAA,  30  October  2000.
Section 667 of this bill addresses back pay for members  of  the  Navy
and Marine Corps selected for promotion while interned as prisoners of
war during World War II.  This provision does not apply to Army or Air
Force officers, nor does it authorize promotions for former POWs.

Although the applicant was promoted to first lieutenant, they  do  not
have any record of  when  he  was  promoted,  nor  are  they  able  to
determine under what provision of  policy  or  law  he  was  promoted.
There are no records available to provide them this information.   Nor
has the applicant provided any supporting documentation to support his
contention that he should have been promoted on an earlier date.

DPPPO believes the application may be dismissed  under  the  equitable
doctrine of laches, which denies relief to one  who  has  unreasonably
and inexcusably delayed in asserting claim.  This  unreasonable  delay
has caused prejudice to the Air Force, as all relevant records are not
available for review.  There are no provisions in the 2001  NDAA  that
would entitle the applicant to be promoted to the  grade  of  captain.
In  addition,  there  is   insufficient   documentation   to   support
applicant’s  claim  that  he  should  have  been  promoted  to   first
lieutenant on an earlier date.  The applicant  has  not  provided  any
documentation to support his  contention  and  there  are  no  records
available to support his claim.  Therefore, they recommend disapproval
of the applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that in April  2003  he  learned  that  Congress  had
passed a bill in 2001 awarding  a  one-grade  promotion  to  all  POWs
between 1941  and  1946.   He  states,  since  there  are  no  records
available to support a promotion as  a  member  of  the  55th  Fighter
Group, in 1944, he requests that  he  receive  a  promotion  to  first
lieutenant, effective 24 December 1944 as authorized  by  Congress  in
2001.  Since he would then be a first lieutenant, at the time  of  his
promotion  at  Wright-Patterson  AFB,  he  requests  that   promotion,
effective that date, be to captain.  He further requests  that  he  be
awarded the back pay due, consistent with those promotions.   He  also
requests that his DD Form 214 be appropriately amended.   On  5  April
2004, applicant submitted a copy of his Temporary WD AGO Form 66-1.

Applicant's  complete  response  and  letter,  with  attachment,   are
attached at Exhibit E.

_________________________________________________________________

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.   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  the  conclusion  that  the
applicant has not been the  victim  of  an  error  or  injustice.   As
stated, although the applicant was promoted to first lieutenant, we do
not have any record of when he  was  promoted,  nor  are  we  able  to
determine under what provision of  policy  or  law  he  was  promoted.
Furthermore, there  are  no  records  available  to  provide  us  this
information  nor   has   the   applicant   provided   any   supporting
documentation to support his  contention  that  he  should  have  been
promoted on an earlier date.  Therefore, 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 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  this  application  in
Executive Session on 27 May 2004, under the provisions of AFI 36-2603:

                 Mr. Gregory H. Petkoff, Panel Chair
                 Mr. Michael J. Novel, Member
                 Ms. Kathleen F. Graham, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket No. BC-2003-03241:

      Exhibit A. DD Form 149, dated 20 Sep 03, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPPO, dated 18 Feb 04.
      Exhibit D. Letter, SAF/MRBR, dated 12 Mar 04.
      Exhibit E. Applicant’s Response, dated 2 Apr 04, w/atchs.




                             GREGORY H. PETKOFF
                             Panel Chair