RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00851
		INDEX CODE:  110.00

	APPLICANT	COUNSEL:  None

	SSN	HEARING DESIRED: Not Indicated

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he received a promotion to senior master sergeant (SMSgt).

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APPLICANT CONTENDS THAT:

He received a letter from HQ AFMPC/DPMDOA dated 26 Jun 95, stating the effective date of his promotion to E-8 is reflected in the personnel data system as 25 Nov 76.

Applicant's complete submission, with attachments, is attached at Exhibit A.
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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letter prepared by the appropriate office of the Air Force.

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AIR FORCE 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 almost 7 years after he states he discovered the alleged error or injustice before he filed a claim, although the applicant knew when he applied for retirement in 3 Oct 67, the highest grade he held on active duty was master sergeant (MSgt).  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 date of rank (DOR) to MSgt is 1 Jun 66.  The applicant applied for retirement on 3 Oct 67, had he not applied for retirement he would have been eligible for promotion consideration beginning with 1 Apr 68.  The applicant was ineligible for promotion consideration in accordance with Air Force Regulation (AFR) 39-29, Promotion of Airmen, Table 1, Rule 8, which states an airmen is ineligible for promotion consideration if he has applied for retirement.  Therefore, based on the rationale provided they recommend denying the applicant’s request (Exhibit C).

AFPC/DPPRRP states the applicant's application for retirement indicates in item 12 that the highest pay grade he held on active duty was MSgt.  Special Order Number AC-28541 approving the applicant's retirement application reflects on line 12 his highest grade held while on active duty was MSgt.  The applicant was promoted to MSgt by Special Order A-455 on 17 Jun 66.  The applicant's performance report with the closing date of 1 May 67 show his grade as MSgt.  HQ AFMPC/DPMDOA contacted the applicant by phone informing him that the personnel data system had been updated erroneously reflecting his as SMSgt and that corrective action was taken to correct the system.  Section 8961, Title 10, United States Code states:  "Unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Air Force…who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement."  In the applicant's case, the grade is MSgt (Exhibit D).
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 26 Apr 02, for review and response.  As of this date, no response has been received by this office. 

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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 error or injustice.  Applicant’s contentions are duly noted; 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.  Based on the information in the applicant's records and in accordance with AF policy he was not eligible for promotion due to his pending voluntary retirement. The applicant submitted a letter from AFMPC/DPMDOA stating his effective date of rank to E-8 was 25 Nov 76; however, the applicant was notified on 29 Jan 96, that the personnel data system was erroneously updated and that the error have been corrected.  Applicant has not established nor has he presented persuasive evidence the he was promoted to senior master sergeant.  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  Docket Number 02-00851 in Executive Session on June 4, 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 Mar 02, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPWB, dated 27 Mar 02.
   Exhibit D.  Letter, AFPC/DPPRRP, dated 16 Apr 02.
   Exhibit E.  Letter, SAF/MRBR, dated 26 Apr 02.