RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03514
				INDEX CODE:  110.00

	APPLICANT	COUNSEL:  None

	SSN		HEARING DESIRED:  

_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive back pay for his promotion to staff sergeant (SSgt).

_________________________________________________________________

APPLICANT CONTENDS THAT:

All flying personnel were to have a SSgt rating or higher but all during combat he was a sergeant.  He was informed his promotion was not accomplished because he was detached from his unit.  He was promoted to SSgt before he was discharged but lost two years of higher pay.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Army US (Air Corp) on  19 Nov 42 in the grade of private.

HQ AFPC/DPW confirmed he was a Prisoner of War (POW) from 22 Feb to 4 May45.  He was promoted to SSgt after his repatriation and was honorably discharged in this grade on 30 Oct 45.

_________________________________________________________________

AIR STAFF EVALUATION:

AFPC/DPPPWB states the applicant has not filed his claim a within the 3-year time limit.  The applicant's request can 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.  In the 
applicant's case, he waited 56 years after his discharge to file and there is no evidence in the available records to indicate that he may have filed a previous claim.  The applicant has not stated when he discovered the alleged error or injustice or why he waited so long to request relief.  The applicant's delay in filing a claim has caused prejudice to the Air Force.  Based on the passage of time relevant records have been destroyed or are no longer available, memories have failed and witnesses are unavailable.  The applicant's delay regarding his promotion has complicated the Air Force's ability to determine the merits of his position. 

The applicant contends his promotion to SSgt should have been effective  on 23 Feb 44, but  he was shot down  and captured on 22 Feb 44.  There were  provisions  (Mil Pers Div Msg dated 2259 21 Sep 45) to promote former POWs one grade when they were liberated, provided they were a POW for more than 18 months or longer.  The applicant was a POW for less than 18 months and therefore, his promotion was not based on him being a POW.

DPPPWB further states the Air Force, after 56 years and limited records, cannot determine if the applicant should have been promoted earlier than he was.  They must assume that his supervisors and commanding officers at the time were in a better position to determine the appropriate promotion effective date.  Therefore based on the rationale provided they recommend denying the applicant’s request (Exhibit D).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR STAFF EVALUATION:

The applicant reviewed the Air Force evaluation and states until a few months ago, he was not aware of the fact that he could request a correction of his military records.  He further states that he was promoted at the time of his discharge and the promotion was not affiliated with his flying years, the practice at that time was to promote each enlisted man one grade at time of discharge (Exhibit F).
_________________________________________________________________

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 opinion and recommendation 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.  In this respect, the Board believes the applicant's chain of command was in the best position to determine the applicant's promotion effective date.  The applicant has not provided sufficient documentation to establish that he should have been promoted on an earlier date.  In view of the foregoing and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 01-03514 in Executive Session on 28 March 2002, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 6 Dec 01, w/atchs.
	Exhibit B.	Available Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPW, dated 23 Jan 02, w/atchs.
	Exhibit D.	Letter, AFPC/DPPPWB, dated 6 Feb 02.
	Exhibit E.	Letter, SAF/MRBR, dated 1 Mar 02.
	Exhibit F.	Applicant's Response, dated 10 Mar 02.