RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03809
            INDEX NUMBER:  128.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  10 JUNE 2006

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APPLICANT REQUESTS THAT:

He receive Hostile Fire Pay (HFP) for  Operation  Agila,  Zimbabwe-
Rhodesia, that took place on 21 December 1979.

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APPLICANT CONTENDS THAT:

On a mission in December 1979, the aircraft he was in  was  subject
to ground fire from guerilla forces during the aircraft’s  approach
into Salisbury Airport, Salisbury, Zimbabwe-Rhodesia.

Upon returning to his base, crewmembers of the  two  C-5  aircrafts
reported the hostile fire event to  the  squadron  commander.   The
commander requested witness statements,  which  were  forwarded  to
Military Airlift Command (MAC) in  January  1980,  for  review  and
approval.  Several months later he followed up on the status of the
packages and was told they were rejected without recourse  offered.
The documents were never returned nor was a formal denial ever sent
to the squadron commander.

In 1991, while deployed to Africa, he spoke  with  a  C-141  flight
engineer, who told him the mission reminded him of the time he flew
into Salisbury on 21  Dec  79,  when  his  aircraft  took  fire  on
approach.   He  further  stated  that   his   C-141   aircrew   had
subsequently been submitted for HFP, but they were  told  that  HQs
MAC rejected their submission.

Individuals at HQs MAC acted contrary to existing  regulations  for
reasons that were never revealed.  One  might  speculate  that  for
some reason the attacks on MAC aircraft were not to  be  officially
acknowledged.  The attacks clearly did happen and an injustice  has
been perpetrated against the aircrews by not properly acknowledging
the hostile act.

In support of  his  application,  applicant  submits  his  personal
statement, copies of his flight orders, travel voucher, two witness
statements, AF Form 1881 (Hostile Fire Pay Certification and  MPO),
and an extract from the HFP – Conditions of Entitlement Table.

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

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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD)
is 24 Dec 1969.  He retired for years of service on 1  Feb  05,  in
the grade of Colonel (0-6).

The applicant provided a travel voucher that indicates he  was  TDY
from 19 - 24 Dec 79, with a stop in Salisbury, Rhodesia, on 21  Dec
79.

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AIR FORCE EVALUATION:

HQ AF/DPPC recommends  denial.   After  researching  the  case  and
consulting with OSD they conclude  applicant  is  not  entitled  to
Hostile Fire Pay.  They have  determined  the  following  facts  in
relation to this case:  (1) The Uniformed Services Pay Act of 1963,
PL 88-132, subsection 9, 77 Stat. 210, 216  governed  HFP  for  the
period  in  question.   The  law  gave  the  Secretary  of  Defense
discretionary authority to pay HFP at the rate of $55 a month;  (2)
The DoD Pay manual in 1979 appeared to  only  authorize  HFP  if  a
member endured hostile fire while in  a  designated  “combat  area”
(Ref Table 1-10-1 from  the  member’s  documents  provided).   They
found no provisions allowing payment outside a  designated  “combat
area”; (3) During 1979, only  Vietnam,  Laos,  Cambodia,  and  Iran
(during the period of hostilities surrounding the  seizure  of  the
AmEmb) were designated  “combat  areas,”  there  is  no  record  of
Rhodesia being declared a designated “combat  area”;  and  (4)  The
Secretary of Defense does not have the authority  to  retroactively
declare an area authorized  for  HFP.   This  action  can  only  be
accomplished through a legislative  change.   They  are  unable  to
provide a relief recommendation for applicant  since  Rhodesia  was
not designated a “combat area.”

A complete copy of the evaluation is at Exhibit C.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommended  the  requested  relief  be  denied.   They
stated, in part, that the law in effect at the time authorized  the
payment of HFP under three conditions.   If  the  member  was:  (1)
subject to hostile fire or explosion of hostile mines; (2) on  duty
in an area in which he was in imminent danger of being  exposed  to
hostile fire or explosion of hostile mines and in which, during the
period he was on duty in that area, other members of the  uniformed
services were subject to  hostile  fire  or  explosion  of  hostile
mines;  or  (3)  killed,  injured,  or  wounded  by  hostile  fire,
explosion of a hostile mine,  or  any  other  hostile  action.   In
implementing HFP, the Department of Defense Pay Manual, Table 1-10-
1, HFP-CONDITIONS OF ENTITLEMENT, Rule 5 authorized its payment  to
members who were “not on duty in a designated hostile fire area and
participated in a hostile encounter while on duty or on  board  the
same vessel or aircraft which was the subject of hostile fire.”  In
1979, Zimbabwe-Rhodesia was not a designated  “hostile  fire  area”
but the applicant was on board, and on duty, an aircraft which  was
the subject of hostile fire.  While the  applicant  may  have  been
entitled to HFP, his request to be awarded  HFP  should  be  denied
based on the Barring Act.   JAA  has  previously  opined  that  the
Barring Act applies  to  this  Board,  defeating  applications  for
relief pertaining to matters within its scope that are  filed  more
than six years after the accrual date.

In the applicant’s case, 24 years ago, he relied on the actions  of
others to assert his HFP  and  ensuring  it  was  received  by  the
“official  responsible”  for  approving  or  certifying  it.    The
responsible official was the local commander—whether  home  station
or hostile fire area is unclear, but the burden rested solely  with
the applicant, not the Air Force, to ensure its timely and accurate
processing.  The applicant attempts to excuse his failure to pursue
his claim due to military relocations and that  it  was  not  until
October  2004  “during  a  search   for   DD   Form   214   support
documents…that this request could be supported.”  Regardless of the
reasons, the  applicant’s  failure  to  assert  a  claim  was,  and
remains,  subject  to  the  Barring  Act’s  six-year   statute   of
limitations and if there was any error or injustice created, it was
due to his failure to assert a timely HFP claim under  the  Barring
Act.

A complete copy of the evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 Feb 05, a copy of the Air Force evaluation was  forwarded  to
the applicant for review and response within 30 days.  As  of  this
date, no response has been received by this office.  (Exhibit D)

On 11 Aug 05, a copy of the JAA evaluation  was  forwarded  to  the
applicant for review and  response  within  30  days;  however,  no
response has been received.  (Exhibit F)

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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.  After  a  careful
review of the applicant’s complete submission,  we  find  that  his
request should be denied under the equitable  doctrine  of  laches,
which denies relief to one who  has  unreasonably  and  inexcusably
delayed asserting a claim.  In our opinion, the burden of  ensuring
timely processing of his claim against the Air Force rested  solely
upon the applicant.  Waiting 24 years to initiate this claim,  when
there was no compelling excuse, was clearly an unreasonable  delay.
The  applicant  asserts  that  unidentified  individuals   at   the
Headquarters Military  Airlift  Command  level  acted  contrary  to
existing regulations for reasons that were never revealed when they
denied his request for Hostile Fire Pay for  the  21 December  1979
mission.  However, his unreasonable delay in filing his  claim  has
also prejudiced the Air Force’s ability to defend against the claim
as relevant records/evidence  have  been  lost  or  destroyed,  and
memories of the precise nature of the events have faded.  Based  on
the foregoing, we find no compelling basis  to  recommend  granting
the relief sought in this application.

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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 Number BC-2004-
03809 in Executive Session on 31 March and 30 September 2005, under
the provisions of AFI 36-2603:

      Mr. Charles E. Bennett, Panel Chair
      Mr. Grover L. Dunn, Member
      Ms. Jan Mulligan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Dec 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AF/DPPC, dated 10 Feb 05.
    Exhibit D.  Letter, SAF/MRBR, dated 18 Feb 05.
    Exhibit E.  Memo, HQ USAF/JAA, dated 29 Jul 05.
    Exhibit F.  Letter, AFBCMR, dated 11 Aug 05.




                                   CHARLES E. BENNETT
                                   Panel Chair