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AF | BCMR | CY2008 | BC-2007-02070
Original file (BC-2007-02070.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02070
            INDEX CODE:  136.00
            COUNSEL:  NONE
            HEARING DESIRED:  NOT INDICATED

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to captain on a date prior to his discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He should have been promoted prior to his discharge.

In support of his request, the applicant provided  documentation  associated
with a Congressional inquiry.

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

_________________________________________________________________

STATEMENT OF FACTS:

Data extracted from the available military personnel records  indicates  the
applicant was appointed a second lieutenant  on  15 January  1943.   He  was
promoted to first lieutenant on  6 November  1943.   He  was  relieved  from
active duty on 17 April 1946 and from 18 April 1946 to 31 December  1953  he
served in the Officer Reserve Corps, not  on  Extended  Active  Duty.   From
1 January 1954 to 31 March 1955, he was on  the  Indefinite  Reserve  Status
(IRS) list and from 1 April 1955, he was transferred to the Inactive  Status
List Reserve Section (ISLRS).

On 6 August 1957, applicant was honorably discharged from  all  appointments
in the Air Force as a first lieutenant.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPO recommends denial.  DPPO states the  applicant  has  not  provided
any documentation to support his contention that  he  was  promoted  to  the
grade  of  captain.   There  is  nothing  in  his  record  to  show  he  was
recommended for  promotion  to  captain.   All  correspondence  he  received
between 1946 and 1957 reflects his grade as first lieutenant.
All governing directives for promotions at that time were  reviewed  and  it
cannot be determined if  the  applicant  would  have  been  eligible  for  a
terminal  leave  promotion  because  of  insufficient   documentation.    In
December  1945,  Separation  Centers,  Points  and  Bases  were  given   the
authority to process  terminal  leave  promotions.   If  the  applicant  was
eligible and recommended for promotion either before or  while  on  terminal
leave, he would have been notified at that time.

This case should be dismissed as untimely.  The very reasons  for  having  a
statute of limitations, like that found in 10 U.S.C. 1552 and  AFI  36-2603,
include the fact that stale claims cannot be  adequately  addressed  because
the passage of  time  has  resulted  in  the  loss  or  destruction  of  the
records/documentation needed to adjudicate the  claim.   That  is  the  case
here.   The  burden  of  proof  rests  with   the   applicant.    When   the
records/documentation no longer exist to verify his  allegations,  there  is
no basis upon which to  grant  relief.   Hence,  it  would  not  be  in  the
interest of justice to waive the time limit  and  decide  the  case  on  its
merits.  The application should therefore be  denied  as  having  failed  to
meet the requisite time requirement.

DPPPO’S complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 14 September 2007, the evaluation was  forwarded  to  the  applicant  for
review and comment within 30 days  (Exhibit  D).   As  of  this  date,  this
office has received no response.

_________________________________________________________________

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 an  error  or  injustice.   After  a  thorough  review  of  the
evidence of record and the applicant’s submission, it is  our  opinion  that
relief is not warranted in this case.  The applicant's contentions are  duly
noted; however, other than his own assertions he has  provided  no  evidence
which sustains his burden of proof of either  an  error  or  injustice.   In
view of the above and in the absence of evidence to the  contrary,  we  find
no compelling basis to recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or injustice; the application  was  denied  without  a
personal appearance; and 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-2007-
02070 in Executive Session on 18 December 2007, under the provisions of  AFI
36-2603:

                 Mr. Michael J. Novel, Panel Chair
                 Mr. Anthony P. Reardon, Member
                 Ms. Marcia Jane Bachman, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 July 2007, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPO, dated 22 August 2007.
   Exhibit D.  Letter, SAF/MRBR, dated 14 September 2007.
   Exhibit E.  Letter, Applicant, dated 14 October 2007.
   Exhibit F.  Letter, SAF/MRBC, dated 30 October 2007.




                 MICHAEL J. NOVEL
                 Panel Chair

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