RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER: BC-2007-04073
                                       INDEX CODE:  131.03
      XXXXXXXXXXXXXXXX                  COUNSEL: NONE

                                             HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he  served  in  the  United  States
Army from 24 February 1943 to 2 August 1946, he was promoted  to  the  grade
of second lieutenant (2Lt) effective 13 February 1946, and he  was  promoted
to the grade of first lieutenant (1Lt) at the time of his  separation  on  2
August 1946.

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APPLICANT CONTENDS THAT:

He was recommended for appointment as a 2Lt and received  paperwork  showing
his rank as 2Lt.  In addition, all pilots who went  through  the  Separation
Center  at  Camp  Beale  received  a  promotion  before  being   discharged;
therefore, he should have been separated as a 1Lt.

In support of his appeal,  the  applicant  provides  a  personal  statement,
military history, Department of Veteran’s  Affairs  (DVA)  Rating  Decision,
separation   documentation,   enlistment   record,    officer    appointment
documentation, assignment documents, and a referral  letter  from  the  Army
Board for Correction of Military Records.

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

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STATEMENT OF FACTS:

On 16 October 1942, the applicant enlisted  in  the  Army  Enlisted  Reserve
Corps in the grade of private.  On 24  February  1943,  he  was  ordered  to
active  duty  to  complete  basic  training  and  subsequently,  attend  the
Aviation Cadet Course.  Following  his  completion  of  the  Aviation  Cadet
Course, he was appointed as a Flight Officer and rated as a pilot on 23  May
1944.  On 10 December 1945, it was recommended he be appointed a 2Lt in  the
Army of the United States.   On  13  February  1946,  by  direction  of  the
President, he was given a temporary appointment to  the  grade  of  2Lt  and
commissioned in the Army.  Pacific Air  Command  Order  #AG  201,  dated  18
February 1946, Subject:  Appointment  of  Officer,  indicates  that  special
orders terminating the applicant’s appointment as a Flight Officer,  calling
him to active duty as a second lieutenant, rating and placing him on  flying
status would be published by the  same  headquarters  upon  receipt  of  his
accomplished Oath of Office and pertinent forms.   An  Army  Service  Forces
Ninth Service Command letter, dated 30 June 1946, indicates  the  applicant,
in the grade of Flight Officer, was transferred to  the  Separation  Center,
War  Department  Personnel,  Camp  Beale,  California,  for  processing  and
separation from the armed service.

According to the applicant’s WD AGO Form 53-98, Military Record  and  Report
of Separation, he served in the Army Air Corps from 23 May 1944 to 2  August
1946.  His separation documents reflect the applicant was separated  in  the
grade of Flight Officer.

On 24 March 1947, by order of the President, the applicant was  appointed  a
second lieutenant, Air  Corps,  Army  of  the  United  States  effective  24
January 1947.  The order indicates the  officer  “…will  enter  active  duty
under this commission only when specifically ordered to such active duty  by
competent authority.”

On 29 February 2008, ARPC/DPSIPV, verified the applicant’s date of entry  on
active duty should be corrected to reflect 24 February 1943.   Subsequently,
they directed AFPC/DPSOY to correct Block 26 of the applicant’s WD AGO  Form
53-98, and Block 34, to correct his current tour of active duty  to  reflect
two years, seven months, and seven days.

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AIR FORCE EVALUATION:

AFPC/DPSOO  recommends  denying  the  applicant’s  request  to  correct  his
records to show he was appointed a 2Lt while on active duty.   DPSOO  states
the applicant did not provide any evidence to  support  this  contention  or
that he would have been eligible for promotion to 1Lt.

DPSOO states that on 13 February 1946, the  applicant  was  advised  of  his
appointment as a 2Lt and that execution and return of the required  Oath  of
Office constituted his acceptance of the appointment.  On 18 February  1946,
his commanding officer was advised of the appointment  and  that  separation
orders terminating his appointment as a Flight Officer  and  orders  calling
him to active duty as a 2Lt would be accomplished upon receipt of  the  Oath
of Office and pertinent forms.   There  is  no  evidence  to  show  that  he
completed the Oath of Office and accepted his appointment  as  a  2Lt.   The
applicant has provided  copies  of  orders  reflecting  his  grade  as  2Lt;
however, these orders were issued by  his  squadron  and  are  not  official
source documents  to  support  his  appointment  as  a  2Lt.   All  official
headquarters  documents  reflect  his  grade  as  a  Flight  Officer.    The
applicant’s record was requested from the National Personnel Records  Center
in St. Louis, MO; however, they are not on file and have been determined  as
possibly being destroyed in a 1973 fire.  Therefore, there  is  insufficient
documentation to support his contention that he accepted his appointment  as
a 2Lt and would have been eligible for promotion to 1Lt at the time  of  his
separation.

Additionally, DPSOO strongly recommends the Board  find  that  excusing  the
applicant’s excessive delay in submitting his appeal would  not  be  in  the
best interest of justice, and deny the application as untimely.   DPSOO  has
no recommendation should the Board elect to grant relief  to  the  applicant
over their objection.

The DPSOO evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends his application was timely.  It was  not  until  he
received a report dated 14 August 2007 from the  DVA  incorrectly  listing
his entry into the military service as 23 May 1944, that he discovered his
records were incorrect.  He not only filed his claim  within  three  years
after discovery, he filed it within three weeks after his  discovery.   He
claims there is more than enough evidence to show  he  took  the  Oath  of
Office.  From February 1946 until he returned to the United States in July
1946, he was addressed as Lieutenant and the orders he  received  referred
to him as Lieutenant.  He has provided photographs with  his  rebuttal  to
show him wearing the  gold  2Lt  bars  as  authorized  by  the  commanding
officers of his squadron and his group after he took his oath.  He  was  a
lieutenant in the eyes of his comrades and superior officers  and  on  the
records of his squadron and group.

He has already proved the military records maintained  by  the  Air  Force
were incorrect because they understated his years of service  by  some  15
months.  His request for correction of his active duty service  dates  was
granted without AFPC complaining they could  not  locate  his  records  to
support this request.   If  the  military  can  make  a  mistake  of  that
magnitude in computing his time served  on  active  duty,  then  it’s  not
surprising to him that his promotion records were misplaced or lost due to
some human ministerial error.  He respectfully submits that his request be
granted, his promotion recognized, and his military records be corrected.

The applicant’s rebuttal, with attachments, is at Exhibit E.

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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 an error or an 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  office  of  primary
responsibility that there is no evidence the applicant  ever  completed  the
required Oath of Office  while  on  active  duty.   We  note  the  applicant
submitted  a  Presidential  citation,  dated  24  March  1947,  as  evidence
indicating he was appointed to the grade of 2Lt effective 24  January  1947;
however, the appointment is effective after  his  date  of  separation  from
active duty and his subsequent transfer to the Reserve.   If  the  applicant
received  a   Reserve   appointment   to   2Lt   (supporting   documentation
unavailable), it does not affect his rank while on active duty or  the  rank
reflected on  his  WD  AGO  Form  53-98  (flight  officer).   Based  on  the
aforementioned, we conclude 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.

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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 this application in  Executive
Session on 29 May 2008, under the provisions of AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mr. Vance E. Lineberger, Member
      Mr. Garry G. Sauner, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2007-04073:

      Exhibit A.  DD Form 149, dated 26 Nov 07, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPSOO, dated 20 Feb 08.
      Exhibit D.  Letter, SAF/MRBR, dated 28 Mar 08.
      Exhibit E.  Applicant’s Rebuttal, dated 5 Apr 08, w/atchs.




                                                   WAYNE R. GRACIE
                                                   Panel Chair