RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01993
		INDEX CODE:  131.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be retired in the grade of colonel.

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APPLICANT CONTENDS THAT:

It took him approximately 7 years to be promoted from the grade of first lieutenant to the grade of captain and 7½ years to be promoted from the grade of major to the grade of lieutenant colonel.  He believes that he should have been retired in the grade of colonel.

He also contends that the Indorsing Official on his Officer Effectiveness Report (OER) rendered for the period 1 June 1958 through 31 May 1959, did not show him the OER or discuss it with him.

In support of his appeal, the applicant provided a personal statement and other documentation.

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

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STATEMENT OF FACTS:

On 19 January 1943 applicant entered active duty as a second lieutenant.  He was relieved from active duty on 14 April 1946, with a terminal leave start date of 9 January 1946.  He was given a terminal leave promotion to the grade of captain effective 9 January 1946.  Terminal leave promotions were without effect unless called back to active duty in the higher grade.

On 17 April 1946, applicant applied for active duty and on 27 June 1946 he was temporarily appointed and commissioned in the Army of the United States (AUS) as a First Lieutenant.  He was advised by letter, if he accepted the appointment it would vacate his present commission as a Captain (AUS), but it would not affect his Reserve status.  On 19 July 1946, he returned to active duty as a first lieutenant with a date of rank (DOR) of 20 March 1944.

On 31 October 1950, applicant was promoted to the temporary grade of captain in the AFUS.

On 1 June 1952, applicant was promoted to the temporary grade of major.

Applicant received a permanent promotion in the Reserve of the Air Force to the grade of lieutenant colonel with a DOR of 25 June 1959.

The applicant retired from the Reserve of the Air Force on 31 January 1960, in the grade of lieutenant colonel.  He served a total of 20 years, 1 month, and 1 day of total active military service.

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AIR FORCE EVALUATION:

AFPC/DPPPO recommended denial.  They indicate that they believe the delay in the applicant’s promotion to the grade of captain resulted from him separating from active duty and agreeing to return to active duty as a first lieutenant.  This was not uncommon at that time.  As for the delay in his promotion to lieutenant colonel, the applicant has not provided any evidence to show there was an error or an injustice done.  Although the applicant has identified problems with his report closing out 31 May 1959, this would not have affected his earlier boards.

The application may be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed in asserting claim.  Laches consist of two elements: inexcusable delay and prejudice to the Air Force resulting therefrom.  In the applicant’s case, he waited over 40 years.  There is insufficient documentation to support the applicant’s contention he should have been promoted to the grade of colonel.  They have no recommendation should the board elect to grant relief to the applicant over their objection.

The Air Force evaluation is at Exhibit C.

AFPC/DPPP indicates that the applicant did not make a specific request regarding his Officer Effectiveness Report (OER) closing 31 May 1959; however, he objects to the Indorsing Official downgrading Section III, Item 4, and comments in Section VII, “This has been discussed with [applicant] on several occasions with slight improvement after each discussion.”

There is no record of the applicant filing an appeal under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports.

Although the applicant contends the report was not discussed with him, he further states, “While he might have, I do not recall [Indorsing Official] discussing this matter with me at any time.”

Since this report is 42 years old, they do not believe the applicant suffered an injustice since he first reviewed the report in September 2000 (41 years after the closeout date).  Additionally, there was no requirement to show the report to the applicant or discuss the ratings and comments before it was filed in his record.  The applicant has not proven the report is an injustice.

The Air Force evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluations and states that he is at a loss to understand why he remained a first lieutenant for approximately seven years before being promoted to the grade of captain when it should have been 18 months.  He held the grade of captain for 20 months prior to being promoted to the grade of major.  He indicates that this is quite a contrast, approximately seven years to captain versus 20 months to major.

Applicant’s response, with attachments, is at Exhibit F.

The applicant provided additional documentation that is at Exhibit G.

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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 probable 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 recommendations of the Air Force and adopt their 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.

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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 AFBCMR Docket Number  01-01993 in Executive Session on 21 March 2002, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 July 2001, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPO, dated 24 January 2002.
   Exhibit D.  Letter, AFPC/DPPP, dated 25 January 2002.
   Exhibit E.  Letter, SAF/MRBR, dated 1 February 2002.
   Exhibit F.  Letter, Applicant, dated 7 February 20002 w/atchs.
   Exhibit G.  Letter, Applicant, dated 11 February 2002.