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AF | BCMR | CY2007 | BC-2007-01082
Original file (BC-2007-01082.DOC) Auto-classification: Denied

RECORD OF PROCEEDINGS

             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-01082
                                             INDEX CODE:  100.00
                             COUNSEL:  NOT INDICATED

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  7 OCT 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

His  records  be  corrected  to  show  he  elected  to  participate  in  the
Montgomery GI Bill (MGIB) Program rather than declining  to  participate  in
the program.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was checking his records and discovered he was not entitled to the  MGIB.
 He believes educational benefits are something everyone should be  entitled
to, and was under the impression throughout his career that he was  entitled
to educational benefits.

Applicant’s complete submission is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force  on
4 September 1985, for a term of six years, and  was  progressively  promoted
to  the  grade  of  master  sergeant.   His  records  reflect  he   declined
participation in the  MGIB  on  13 September  1985,  via  a  DD  Form  2366,
Veterans’ Educational Assistance Act of 1984.

On 25 April 2007, the applicant was informed that  his  records  reflect  he
elected to decline the  MGIB  and  requested  he  provide  documentation  to
support a government error or injustice.  (Exhibit B)

He retired in the grade of master sergeant on 1 September 2007.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPAT recommends  denial.   DPPAT  states,  in  part,  the  applicant’s
request merits denial based on the Defense of Laches.  In  the  interest  of
justice, the applicant was asked to provide information that  could  support
a government error or  injustice.   His  11  June  2007,  response  did  not
support a government error, but an ideological point of view.

The Defense of  Laches  denies  relief  to  one  who  has  unreasonably  and
inexcusably delayed in asserting a claim.  In  this  case,  his  declination
statement took effect over 20 years ago.  His unreasonable delay has  caused
prejudice to the Air Force through fading of memories or lack  of  witnesses
who can recall this specific event where the applicant  elected  to  decline
MGIB participation.

In short, the Air Force asserts  that  the  applicant’s  unreasonable  delay
regarding a matter dating back to 13 September 1985 greatly complicates  the
ability to determine the  merits  of  the  applicant’s  position.   Approval
violates Title 38 U.S.C. Chapter 30.

The AFPC/DPPAT evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states in part,  although  the  advisory  opinion  states  his
records reflect he declined participation in the MGIB, he  does  not  recall
taking this action.  However, thinking back over the last 21  years  he  can
understand why he and others would possibly decline the MGIB.  Asking  a  17
or 18 year old enlistee during a hectic and  stressful  time  to  make  this
type  of  decision,  while  being  pushed  through  basic  training  is   an
injustice.  He is aware of many  individuals  who  declined  the  MGIB,  but
later regretted that decision.  All of whom stated, the time frame  and  the
pressures during basic training were not fair circumstances for them  to  be
forced to make such a vital decision.

The applicant’s complete response is 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 opinions and recommendation of the  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion  that
the applicant has not been the victim of an error or injustice.   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  Docket  Number  BC-2007-01082
in Executive Session on 18 September 2007, under the provisions of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Patrick C. Daugherty, Member
                       Mr. Joseph D. Yount, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Mar 07, w/atchs.
    Exhibit B.  Applicant’s Master Personnel Records
    Exhibit C.  Memo, AFPC/DPPAT, dated 16 Jul 07.
    Exhibit D.  Letter, SAF/MRBR, dated 10 Aug 07.
    Exhibit E.  Letter, Applicant, dated 11 Jun 07, w/atch.





                                   THOMAS S. MARKIEWICZ
                                   Chair

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