RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03241
		INDEX CODE:  131.06

		COUNSEL:  NONE

		HEARING DESIRED:  NOT INDICATED

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show he is a prisoner of war (POW) and was promoted to a higher grade.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was told by another pilot from his outfit that ended up in the same prison camp compound that his promotion had come through but he would not receive it because he was out of allied control and reported killed.

In support of the appeal, applicant submits a personal statement, a copy of his Certificate of Service, a copy of the aircraft crew position list, a picture of ID, and a copy of his Temporary WDAGO Form 66-1.  Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty as a second lieutenant, Army of the United States (AUS) on 8 February 1944.  He was promoted to first lieutenant sometime in 1946.  He was relieved from active duty on 20 September 1946.  On 14 November 2003, AFPC/DPW requested applicant’s discharge document be corrected to reflect that he was a prisoner of war (POW) from 24 December 1944 to 13 May 1945.  His Report of Separation reflects the award of the Purple Heart Medal, the Air Medal, the American Theater Ribbon, the EAME Theater Ribbon with 2 Bronze Battle Stars, the Victory Medal and 1 Overseas Service Bar.  He is also entitled to the POW Medal, the European-African-Middle Eastern Campaign with 3 Bronze Service Stars and the Distinguished Unit Citation, which have been added to his Report of Separation.

Based on the submission of this application, AFPC/DPW confirmed the applicant was a POW from 24 December 1944 to 13 May 1945.  The applicant was advised of the above in a letter dated 1 December 2003.

While reviewing the applicant’s records, it was discovered that there is an error on his DD Form 214, Certificate of Release or Discharge from Active Duty effective 20 September 1946.  A DD Form 215, Correction to DD Form 214 has been completed to correct the applicant’s separation document (WD-AGO Form 53-96) to add the POW Medal for the period 24 December 1944 - 13 May 1945), European-African-Middle Eastern Campaign w/3 Bronze Service Stars (BSS), Distinguished Unit Citation, and forwarded to the applicant.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPO states that requirements for promotion were governed by Army Regulation 605-12, Temporary Promotions in the Army of the United States, 17 August 1944.  Normally, officers were not recommended for promotion, nor were recommendations forwarded, or promotions approved by a commander exercising promotion authority unless a position vacancy existed under the jurisdiction of the commander concerned in the grade to which promotion was recommended.  In addition, officers were not recommended for promotion until they served the minimum time-in-grade requirements.

Per AR 605-12, para 5(d), all commissioned officer personnel below the grade of colonel who were returned to United States military control from a status of prisoner of war and who presumably would have been promoted but for their internment, evasion, or capture, were to be considered for an immediate one grade promotion provided the circumstances surrounding the individual’s loss to the AUS and subsequent conduct was honorable.  Recommendations for promotion under provisions of this paragraph could be submitted without regard to time-in-grade, time-in-position, or position vacancies.

DPPPO reviewed Public Law 106-398, 2001 NDAA, 30 October 2000.  Section 667 of this bill addresses back pay for members of the Navy and Marine Corps selected for promotion while interned as prisoners of war during World War II.  This provision does not apply to Army or Air Force officers, nor does it authorize promotions for former POWs.

Although the applicant was promoted to first lieutenant, they do not have any record of when he was promoted, nor are they able to determine under what provision of policy or law he was promoted.  There are no records available to provide them this information.  Nor has the applicant provided any supporting documentation to support his contention that he should have been promoted on an earlier date.

DPPPO believes 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.  This unreasonable delay has caused prejudice to the Air Force, as all relevant records are not available for review.  There are no provisions in the 2001 NDAA that would entitle the applicant to be promoted to the grade of captain.  In addition, there is insufficient documentation to support applicant’s claim that he should have been promoted to first lieutenant on an earlier date.  The applicant has not provided any documentation to support his contention and there are no records available to support his claim.  Therefore, they recommend disapproval of the applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that in April 2003 he learned that Congress had passed a bill in 2001 awarding a one-grade promotion to all POWs between 1941 and 1946.  He states, since there are no records available to support a promotion as a member of the 55th Fighter Group, in 1944, he requests that he receive a promotion to first lieutenant, effective 24 December 1944 as authorized by Congress in 2001.  Since he would then be a first lieutenant, at the time of his promotion at Wright-Patterson AFB, he requests that promotion, effective that date, be to captain.  He further requests that he be awarded the back pay due, consistent with those promotions.  He also requests that his DD Form 214 be appropriately amended.  On 5 April 2004, applicant submitted a copy of his Temporary WD AGO Form 66-1.

Applicant's complete response and letter, with attachment, are attached at Exhibit E.

_________________________________________________________________

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.  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 the conclusion that the applicant has not been the victim of an error or injustice.  As stated, although the applicant was promoted to first lieutenant, we do not have any record of when he was promoted, nor are we able to determine under what provision of policy or law he was promoted.  Furthermore, there are no records available to provide us this information nor has the applicant provided any supporting documentation to support his contention that he should have been promoted on an earlier date.  Therefore, 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 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 this application in Executive Session on 27 May 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket No. BC-2003-03241:

	Exhibit A.	DD Form 149, dated 20 Sep 03, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPPPO, dated 18 Feb 04.
	Exhibit D.	Letter, SAF/MRBR, dated 12 Mar 04.
	Exhibit E.	Applicant’s Response, dated 2 Apr 04, w/atchs.