RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02923
		INDEX CODE: 131.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His rank on his DD Form 214, Report of Separation, be changed from Airman Third Class to either Staff Sergeant or Technical Sergeant.

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APPLICANT CONTENDS THAT:

He was reduced in rank on the eve of his promotion to technical sergeant.  He contends his commanding officer indicated that he would be returned to the grade of staff sergeant as soon as possible.

In support of his appeal, the applicant provided a letter to Congressman Crane, dated 6 August 2002 and other documentation.

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

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STATEMENT OF FACTS:

Applicant's military personnel records were destroyed by fire in 1973, at the National Personnel Records Center (NPRC).  Therefore, the facts surrounding his alleged reduction in grade and any promotions cannot be verified.

Records provided by the applicant indicate that he enlisted in the Regular Air Force on 11 September 1947 and was honorably discharged on 4 January 1951, in the grade of sergeant, in accordance with AFR 39-14 (To Reenlist). He served a total of 3 years, 3 months, and 24 days.

On 5 January 1951, applicant reenlisted for a period of 3 years.  He was honorably discharged on 23 October 1953, in the grade of airman third class (effective 14 November 1952), in accordance with AFR 39-14 (Convenience of the Government). He served a total of 2 years, 9 months, and 12 days this enlistment.  His Total Air Force Military Service (TAFMS) was 6 years, 1 month, and 6 days.

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AIR FORCE EVALUATION:

AFPC/DPPPWB recommended denial.  They indicated that the application has not been filed within the three-year time limitation imposed by AFI 36-2603, Air Force Board for Correction of Military Records, paragraph 3.5, 1 March 1996.  In addition to being untimely under the statute of limitations, the applicant’s request 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 there from.  In the applicant’s case, he waited 49 years before he petitioned the Air Force Board for Correction of Military Records (AFBCMR).  Applicant’s unreasonable delay has also caused prejudice to the Air Force as relevant records have been destroyed or are no longer available, memories have failed, and witnesses are unavailable.

They have reviewed the extremely limited records (records destroyed in 1973 at NPRC) on the applicant and find no documentation regarding a promotion to SSgt or any other enlisted grade.  Again, the applicant states that his commanding officer would see to it that he be returned to his former rank as soon as possible.  However, the applicant’s DD Form 214, Report of Separation – Honorable Discharge, shows his grade as airman third class when he was discharged 23 October 1953.  In the absence of any documentation to the contrary, they must assume the applicant was discharged in the correct grade.

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 8 November 2002, a copy of the Air Force evaluation was forwarded to the applicant for review and response within thirty (30) days.  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 an error or an injustice.  We took notice of the applicant's complete submission in judging the merits of the case.  After careful consideration of applicant’s request and the available evidence of record, we find insufficient evidence of error or injustice to warrant corrective action with respect to his request.  The facts and opinions stated in the advisory opinion appear to be based on the available evidence of record and have not been rebutted by applicant.  The applicant’s personnel records appear to have been destroyed by fire and we do not know the facts surrounding his alleged reduction in grade and any promotions cannot be verified.  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 AFBCMR Docket Number 02-02923 in Executive Session on 17 December 2002, under  the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 1 October 2002, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPWB, dated 22 October 2002.
   Exhibit D.  Letter, SAF/MRBR, dated 8 November 2002.