RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:  				DOCKET NUMBER:  02-01892
								INDEX CODE:  108.09
								COUNSEL: None 

								HEARING DESIRED: Yes 

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APPLICANT REQUESTS THAT:

His retired grade be changed from “First Lieutenant” to “Captain” effective 7 September 1947.

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APPLICANT CONTENDS THAT:

He should have been promoted to the grade of Captain prior to his release from active duty.  Army Regulations in 1947 provided disabled retired officers a promotion to the next highest grade upon retirement.  He was denied promotion to Captain due to a Letter of Reprimand (LOR) received as a student at Peterson Field, CO.  The LOR should have been removed from his records upon leaving Peterson Field. 

In support of his application, the applicant provides copies of documentation pertaining to his Army Retiring Board proceedings, his Certificate of Service and correspondence associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 30 November 1942, the applicant enlisted in the Air Force Enlisted Reserve in the grade of private.  He was appointed an aviation cadet on 28 January 1943.  Having successfully completed training, he was honorably discharged from enlisted status on 23 December 1943 and his appointment as an aviation cadet was terminated.

On 24 December 1943, the applicant was appointed a temporary second lieutenant, Army of the United States (AUS), Air Corps.  He was ordered to active duty on that same date.  Following additional training, the applicant was assigned to duties as a B-24 bombardier in the European Theater of Operations, arriving there on 31 May 1944.  He was wounded by flak while on a mission over Munich, Germany on 13 June 1944.  Following treatment for his injuries in‑theater, he was returned to the Continental United States on 14 September 1944.  On 5 July 1945, the applicant was promoted to First Lieutenant, AUS.

Based on the approved findings of the Army Retiring Board that the applicant was permanently incapacitated for military service, that such incapacity was the caused by and the result of an incident of service, and that his disability was combat incurred or the result of an explosion of an instrumentality of war in the line of duty, the applicant was released from active duty in the grade of first lieutenant on 7 September 1947.  He was notified that he would be certified to the Veterans Administration for retirement benefits.  At the time of his separation, he was credited with 3 years, 4 months and 21 days of Continental service and 3 months and 23 days of Foreign Service.  He had participated in the Rome - Arno battles/campaigns and had been awarded the Distinguished Flying Cross, the Purple Heart Medal, the European-African-Middle Eastern Campaign Medal, the American Campaign Medal, and the World War II Victory Medal.

Subsequent to the passage of the Career Compensation Act of 1949, the applicant’s records were reviewed and he was offered and elected to receive disability retired pay in the grade of first lieutenant based on the assignment of a compensable rating of 70%. 

Examiner’s Note:  According to Army Regulation (AR) 605-245, Section V, paragraph 28(a), any officer of the Regular Army who heretofore or hereafter has been or may be retired for physical disability determined or incurred while serving under a temporary appointment in a higher grade shall have the rank and receive retired pay computed as otherwise provided by law for such officers of such higher grade.

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AIR FORCE EVALUATION:

AFPC/DPPPO recommends the application be denied.  DPPPO states applicant did not meet either the time-in-grade (TIG) or efficiency index required to be eligible for a terminal leave promotion.  They also state there is no documentation to show the applicant was ever recommended for promotion.  DPPPO also mentions the application may be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed in asserting a claim.  This unreasonable delay has caused prejudice to the Air Force, as all relevant records are not available for review.  (See Exhibit C)

AFPC/DPPD recommends the application be denied.  DPPD states that the Department of the Air Force (DAF) reviewed this Veteran’s military records and determined his eligibility for disability retirement with a 70 percent disability rating in the grade of First 

Lieutenant.  Applicant subsequently concurred with these findings.  DPPD asserts that the applicant’s military records lack evidence to verify he should have been promoted to the grade of Captain prior to his release from active duty.  The DPPD evaluation is at 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 11 October 2002 for review and response.  As of this date, this office has received no response.

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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.  The applicant has provided no evidence substantiating his claim that members being separated for disability at the end of World War II were authorized a one-grade promotion.  To the contrary, available evidence indicates that members separated for disability were authorized retirement in the highest temporary grade held on active duty.  Since the record does not reveal nor has the applicant provided any evidence showing he served in a grade higher than first lieutenant or showing he was treated differently from other similarly situated members, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  While we are not unappreciative of the applicant’s accomplishments in the service of his Nation, in the absence of evidence showing he served in a higher grade, we have no basis on which to favorably consider his application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 No. 02-01892 in Executive Session on 13 November 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered with:

    Exhibit A.  DD Form 149, dated 5 Apr 02, with attachments.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPPO, dated 18 Sep 02.
    Exhibit D.  Letter, HQ AFPC/DPPD, dated 2 Oct 02.
    Exhibit E.  Letter, SAF/MRBR, dated 11 Oct 02.

                                   Panel Chair