RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	  DOCKET NUMBER: BC-2013-03381
                          COUNSEL:
	  	          HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

He receives a retroactive promotion to the grade of captain   
(O-3) effective no later than his discharge on 26 Jan 1946.  

________________________________________________________________

APPLICANT CONTENDS THAT:

He was assigned flying duties and tasks during war time service 
that were commensurate with the grade of at least a captain.

He was attached to a unit in North Africa but could not be 
promoted since he was not formally assigned to the unit.  For 
this reason, and the general fog of war, he was not promoted to 
the grade of captain.

The injustice has existed for over 67 years.

In support of his request, the applicant provides a chronology 
of his military service, photographs, maps, autobiographical 
overview, Army of the United States Certificate of Service,   
WD-AGO Form 53-98, Military Record and Report of Separation; and 
various other documents associated with his request.   

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant was a member of the Army Air Force from 14 Jan 
1943 to 26 Jan 1946.
  
________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial.  There is insufficient evidence to 
support his contention that he was either eligible or 
recommended for promotion to the grade of captain.  Without any 
official documentation, DPSOO is unable to support the request.  
Furthermore, the application is untimely and may be dismissed 
under the equitable doctrine of laches, which denies relief to 
one who has unreasonably and inexcusably delayed in 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 60 years.   

Under Army Regulation 605-12, Temporary Promotions in the Army 
of the United States, 17 Aug 1944, no recommendation for 
promotion of an officer will be initiated unless a position 
vacancy exists and the officer served the maximum period in the 
next lower grade.  For promotion to the grade of captain, the 
Time in Grade (TIG) requirement as a first lieutenant was       
9 months, DPSOO believes the applicant may have met the TIG 
requirement, but DPSOO cannot verify his Date of Rank (DOR) to 
the grade of first lieutenant.  In addition, DPSOO is unable to 
verify if the applicant was ever recommended for promotion.  The 
applicant’s records were requested from the National Personnel 
Records Center (NPRC).  His records are not on file and it has 
been determined if they had been there on 12 Jul 1973, they 
would have been in the area that suffered the most damage in the 
fire on that date and may have been destroyed.  Therefore, there 
is insufficient evidence to support his contention that he 
should have been promoted to the grade of captain.  Furthermore, 
DPSOO cannot determine if the applicant met the eligibility 
criteria for a terminal leave promotion prior to his separation 
from active duty.  

The complete DPSOO evaluation is at Exhibit B.  

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states as to the untimely nature of the 
request, the applicant lived a productive life following his 
service during World War II always feeling slighted at not 
having been properly promoted to the grade of captain.  He was 
unaware of the available recourse to correct such matters and it 
was only recently when his story was told to others did he 
become aware of the avenues for correction of records.  In any 
case, the error persisted in spite of the delay and should not 
be a reason for disapproval.

Since his records were not available from the NPRC, there are no 
records to support his claim.  By the same token, there are no 
records from the NPRC to refute the claim.  He should not suffer 
from the loss of military records destroyed while in the care of 
the Government.  The applicant retained many of his military 
records and they are submitted to justify approval of the 
application.

He asks the Board to consider that he was assigned flying duties 
and tasks during his war time service that were commensurate 
with at least the grade of captain.  He was a flight commander 
of five C-47’s ferried from Florida across the Atlantic Ocean to 
North Africa, a responsibility usually assigned to an officer in 
the grade of captain or major.  He was attached to, but not a 
member of a unit in Africa during that period and as a result, 
although qualified, he could not be promoted by the unit.

Other than advancement to the grade of captain, no other 
consideration such as back pay or other benefits is requested.

The applicant’s complete response, with attachments, is at 
Exhibit D.

________________________________________________________________

FINDINGS AND CONCLUSIONS OF THE BOARD:

After careful consideration of the evidence of record, we find 
the application untimely.  The applicant did not file within 
three years after the alleged error or injustice was discovered 
as required by Title 10, United States Code, Section 1552 and 
Air Force Instruction 36-2603, Air Force Board for Correction of 
Military Records.  The applicant has not shown a sufficient 
reason for the delay in filing on a matter now dating back over 
67 years, which has greatly complicated the ability to determine 
the merits of the application.  Moreover, the applicant has not 
provided substantial evidence which would persuade us that his 
records should be corrected to show he was promoted to any grade 
higher than that reflected in his military records.   Therefore, 
we are not persuaded the record raises issues of error or 
injustice which require resolution on the merits.  Thus, we 
cannot conclude it would be in the interest of justice to excuse 
applicant’s failure to file in a timely manner.

________________________________________________________________

DECISION OF THE BOARD:  

The application was not timely filed and it would not be in the 
interest of justice to waive the untimeliness.  It is the 
decision of the Board, therefore, to reject the application as 
untimely.

________________________________________________________________

The following members of the Board considered Docket Number BC-
2013-03381 in Executive Session on 15 May 2014, under the 
provisions of AFI 36-2603:

	         , Panel Chair
 		 , Member
		 , Member

The following pertinent evidence was considered in Docket Number 
BC-2013-03381:

    Exhibit A.  DD Form 149, dated 10 Jul 2013, w/atchs.
    Exhibit B.  Letter, AFPC/DPSOO, dated 31 Jan 2014.  
    Exhibit C.  Letter, SAF/MRBR, dated 7 Mar 2014.  
    Exhibit D.  Letter, Applicant’s Counsel, dated 20 Mar 2014, 
                w/atchs.  
    


 							 
                                   Panel Chair