RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01437
		INDEX CODE:  131.03

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

He be promoted from staff sergeant to technical sergeant.

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APPLICANT CONTENDS THAT:

As a flight engineer with the XXXXXX Air National Guard (XXANG), the operations officer abused him during a flight.  Consequently, he determined to not reenlist with the XXANG.  The chief flight engineer told him he would take care of the matter and make sure he was promoted to technical sergeant if he would reenlist.  The operations officer demoted the chief flight engineer as a result of his action to help him and then promoted another man in his place.  The operations officer eventually offered the applicant $1,000 to reenlist.  He refused the offer and left the XXANG for eventual membership in the YYYYY ANG (YYANG).

In support of his appeal, the applicant has provided a personal statement, copies of pertinent telegrams, newspaper articles, flight logs from the XXANG, a patent application, medical documentation, and individual flight records.

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

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STATEMENT OF FACTS:

The applicant served with the XXANG as an airborne mechanic through June 1962 when he was reassigned as a flight engineer.  He served in that capacity until 28 March 1964 when he was discharged from the XXANG.  On 25 October 1965, he enlisted in the YYANG as a flight engineer.  He served with the YYANG until 17 June 1966 when he was honorably discharged at the convenience of the government.  At the time of his discharge he was serving in the grade of staff sergeant and had accumulated 11 years, 7 months, and 23 days of combined active, Reserve and ANG service.

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AIR FORCE EVALUATION:

ANG/DPPI notes the applicant’s submission is well beyond the three-year time bar statute set forth in 10 United States Code (USC) 1552(b).  In addition to the fact that this case refers to events that happened over 40 years ago, the applicant has provided no documentation or specific evidence that an error or injustice ever occurred in the manner he sets forth, nor has he presented any documentation indicating he was recommended for promotion.  DPPI states that in addition to being untimely under the statute of limitations, the inexcusable delay in submitting his application has resulted in the possible loss of records, destruction or loss of other evidence, and renders uncertain the availability of pertinent witnesses.  DPPI has nothing with which to investigate or confirm his allegations and therefore recommends denial of his request.

ANG/DPPF’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asks that the timeliness issue be waived in the interest of justice.  He had forgotten or misplaced the entire episode until he began application for a patent whereupon he remembered the incident and wishes to receive the promotion he was promised.  

Applicant’s complete rebuttal, with attachments, is at Exhibit E.

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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.  After a thorough review of the evidence of record and applicant's submission, we are not persuaded that his uncorroborated assertions of abuse at the hands of a senior officer, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  Further, he provided no evidence to show he had been recommended for promotion to technical sergeant.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or injustice.  Consequently, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this 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 issue(s) 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 AFBCMR Docket Number BC-2004-01437 in Executive Session on 28 September 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Apr 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 29 Jul 04.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Aug 04.
    Exhibit E.  Letter, Applicant, dated 15 Aug 04, w/atchs.