RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01982
		INDEX CODE:  110.00
		COUNSEL:  

		HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

The AFR 39-30 (Administrative Demotion of Airmen) action be removed from his military record. 
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APPLICANT CONTENDS THAT:

His demotion was unjustified and he was not counseled prior or during his probationary period. 

In support of the applicant’s appeal, he provides a copy of his on-the-job training record, copies of promotion orders, demotion order, award of the Good Conduct Medal and an indorsement letter from the DAV.  

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 20 October 1950, the applicant contracted his initial enlistment in the Regular Air Force in the grade of private first class (E-2).  At that time, he was credited with prior service in the U.S. Navy Reserve from 19 July 1943 through 19 October 1950, when he was discharged in the grade of F1C (Fireman).  While a member of the U.S. Navy Reserve, he served on active duty from 19 July 1943 to 31 March 1946.

Prior to the events under review, the applicant was progressively promoted to the grade of airman first class (E-4) on 1 August 1953 and thereafter to the grade of staff sergeant (E-5), effective and with a date of rank of 1 October 1955.

On 29 August 1957, the applicant’s commander notified the applicant of his intent to recommend his demotion to the grade of airman first class (E-4) based on his attitude and his failure to fulfill his responsibilities of proficiency and leadership commensurate with the grade of staff sergeant.  The applicant was advised of his rights in the matter.  The applicant acknowledged receipt and according to an indorsement by the commander, was provided clarification of the grounds for the commander’s recommendation.

On 2 October 1957, a Board of Officers was convened to consider whether the applicant should be demoted.  The applicant appeared before the board and was represented by counsel.  After hearing the testimony and reviewing the evidence, including the applicant’s oral and written presentations, the board found that the applicant had failed to maintain the qualities of leadership required of a staff sergeant and recommended he be reduced to the grade of airman first class. The board’s recommendations were approved and on 21 October 1957, orders were issued announcing the applicant’s demotion to the grade of airman first class (E-3) with a date of rank of 1 August 1953.  The record reveals that the applicant was counseled concerning the demotion and his right to seek redress according to Article 138, UCMJ.  The file contains no further information concerning this matter.

Subsequent to that time, the applicant continued to enlist and serve on active duty.  He was again promoted to the grade of staff sergeant (E-5) on 1 February 1963 and to the grade of technical sergeant (E-6) on 1 August 1968.  He was honorably relieved from active duty on 30 June 1969 and retired in the grade of technical sergeant on 1 July 1969.  He had served 21 years, 4 months and 23 days on active duty.  Service for pay purposes was 24 years, 9 months and 2 days. 

On 28 January 1959 and 26 February 1960, the Air Force Board for Correction of Military Records considered and denied similar requests by the applicant.  

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AIR FORCE EVALUATION:

The Enlisted Promotion and Military Testing Branch, AFPC/DPPPWB, reviewed this application and recommends the applicant’s request be denied.  AFPC/DPPPWB indicates that the applicant has failed to provide any rationale for the delay in filing an application for the alleged error or injustice that occurred almost 44 years ago.  AFPC/DPPPWB states that in addition to the application being untimely, the application may also be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed asserting a claim.  Laches consists of two elements: inexcusable delay and prejudice to the Air Force resulting therefrom.  AFPC/DPPPWB asserts that the delay regarding this application dating back almost 44 years has greatly complicated its ability to determine the merits of the applicant’s position.  Although the applicant claims the demotion was unjustified and he was not counseled prior to or during the probationary period, statements in the case file from his supervisors and others (that were provided the demotion board) indicate he was counseled on his deficiencies many times (See Exhibit C).
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and in response indicated that his untimeliness for filing an application was due to extreme duress.  He states he was never a disciplinary problem and the harshest method of discipline was taken against him.  

Applicant’s complete response is attached at Exhibit E.
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THE BOARD CONCLUDES THAT:

Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  Evidence has not been presented which would lead us to believe that the contested disciplinary action taken against the applicant was improper.  It appears that the crux of his argument is his allegation that he was not counseled on his shortcomings prior to or during the probationary period.  He provides no convincing evidence to support this claim.  The action taken by his commander appears to have been within his discretionary authority and the applicant was afforded due process.  We are in complete agreement with the Air Force assessment on this matter and adopt their conclusions as our findings in this case.  The applicant’s contentions have been duly noted.  Other than his own self-supportive statements, neither does the record reveal nor has he provided any documentary evidence, which successfully refutes the Air Force opinion concerning the propriety of the actions taken.  Accordingly, we are not inclined to favorably consider the applicant’s request.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 10 January 2002, under the provisions of AFI 36‑2603:

     Chair
     Member
     Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 28 June 2001 w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPWB, dated 7 August 2001.
     Exhibit D.  Letter, SAF/MIBR, dated 24 August 2001.
     Exhibit E.  Letter, Applicant, dated 30 August 2001.