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AF | BCMR | CY2004 | BC-2004-02397
Original file (BC-2004-02397.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02397
                       INDEX CODE:  107.00
                       COUNSEL:  None

                       HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be  corrected  to  reflect  he  received  a  promotion  to
technical sergeant (TSgt) while he was a Prisoner of War (POW).

EXAMINER’S NOTE:   On  7  September  2004,  AFPC/DPPPRA  informed  the
applicant upon review of his records his eligibility had been verified
for award of the Prisoner of War (POW) Medal,  the  American  Campaign
Medal and the World War II Victory Medal.  On 10 September 2004, a  DD
Form 215 was issued adding the POW Medal, the American Campaign  Medal
and the World War II Victory Medal to his DD Form 214.  Therefore, the
only remaining issue for the Board  to  consider  is  the  applicant’s
request regarding when he was promoted to TSgt.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was overlooked.

Applicant's complete submission, with an attachment,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The available records reflect the applicant served on active duty from
3 November 1942 to 29 September 1945.

The  Army  Repatriation  and  Family  Affair  Division  verified   the
applicant was a POW from 22 March 1944 to 1 May 1945.

The applicant was  honorably  discharged  in  the  grade  of  TSgt  on
29 September 1945.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPWB  states  in  accordance  with  the  Military  Personnel
Division,  ASF,  Department  of  the  Army  Message  212259Z  Sep  45,
recovered personnel must have been absent from military control  under
honorable conditions for eighteen months or longer, and have  not  yet
received a one grade promotion since return to  military  control,  in
order to be eligible for a POW promotion.  The applicant was a POW for
13 months and does not meet the prerequisites for a promotion.

The applicant’s records reflect the highest grade held and  the  grade
at the time of discharge was TSgt.

Furthermore, the applicant has not filed his claim within  the  three-
year time limit.  The applicant's request can also 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 over 59
years before he petitioned the Board.  The applicant's delay in filing
a claim has caused prejudice to the Air Force as relevant records have
been destroyed or are no longer available, memories  have  failed  and
witnesses are unavailable.

DPPPWB further states in the  absence  of  any  documentation  to  the
contrary, they must assume the applicant was discharged in the correct
grade.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
17 September 2004, for review and  response.   As  of  this  date,  no
response has been received by this office.

_________________________________________________________________

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’s contentions  are
duly noted, however, he has submitted no  evidence  to  support  these
contentions.    Therefore,   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 either an error or an  injustice.
It has been verified the applicant  was  a  Prisoner  of  War  for  13
months; as a result, he did not meet the prerequisites  for  promotion
as a Prisoner of War.  The applicant’s Enlisted Record and  Report  of
Separation reflects he  was  discharged  in  the  grade  of  technical
sergeant.  Unfortunately, there was no documentation in his records to
indicate when he was promoted to technical sergeant.  Therefore, based
upon the presumption of regularity  in  the  conduct  of  governmental
affairs and without evidence to the contrary, we must assume that  the
applicant’s  promotion  to  technical  sergeant  was  proper  and   in
compliance with appropriate directives.  While we are not unmindful or
unappreciative of the  applicant’s  service  to  his  Nation,  in  the
absence of the 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 AFBCMR Docket Number BC-
2004-02397  in  Executive  Session  on  4  November  2004,  under  the
provisions of AFI 36-2603:

                 Mr. Robert S. Boyd, Panel Chair
                 Mr. Garry G. Sauner, Member
                 Ms. Carolyn B. Willis, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 25 July 04, w/atchs.
      Exhibit B. Available Military Personnel Records.
      Exhibit C. Letter, HQ AFPC/DPPPWB, dated 25 Aug 04.
      Exhibit D. SAF/MRBR, dated 17 Sep 04.




                             ROBERT S. BOYD
                             Panel Chair
-----------------------
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