RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-03809
		INDEX NUMBER:  128.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  10 JUNE 2006

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APPLICANT REQUESTS THAT:

He receive Hostile Fire Pay (HFP) for Operation Agila, Zimbabwe-Rhodesia, that took place on 21 December 1979.

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APPLICANT CONTENDS THAT:

On a mission in December 1979, the aircraft he was in was subject to ground fire from guerilla forces during the aircraft’s approach into Salisbury Airport, Salisbury, Zimbabwe-Rhodesia.  

Upon returning to his base, crewmembers of the two C-5 aircrafts reported the hostile fire event to the squadron commander.  The commander requested witness statements, which were forwarded to Military Airlift Command (MAC) in January 1980, for review and approval.  Several months later he followed up on the status of the packages and was told they were rejected without recourse offered.  The documents were never returned nor was a formal denial ever sent to the squadron commander.  

In 1991, while deployed to Africa, he spoke with a C-141 flight engineer, who told him the mission reminded him of the time he flew into Salisbury on 21 Dec 79, when his aircraft took fire on approach.  He further stated that his C-141 aircrew had subsequently been submitted for HFP, but they were told that HQs MAC rejected their submission.

Individuals at HQs MAC acted contrary to existing regulations for reasons that were never revealed.  One might speculate that for some reason the attacks on MAC aircraft were not to be officially acknowledged.  The attacks clearly did happen and an injustice has been perpetrated against the aircrews by not properly acknowledging the hostile act.

In support of his application, applicant submits his personal statement, copies of his flight orders, travel voucher, two witness statements, AF Form 1881 (Hostile Fire Pay Certification and MPO), and an extract from the HFP – Conditions of Entitlement Table.

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

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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 24 Dec 1969.  He retired for years of service on 1 Feb 05, in the grade of Colonel (0-6).

The applicant provided a travel voucher that indicates he was TDY from 19 - 24 Dec 79, with a stop in Salisbury, Rhodesia, on 21 Dec 79.

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AIR FORCE EVALUATION:

HQ AF/DPPC recommends denial.  After researching the case and consulting with OSD they conclude applicant is not entitled to Hostile Fire Pay.  They have determined the following facts in relation to this case:  (1) The Uniformed Services Pay Act of 1963, PL 88-132, subsection 9, 77 Stat. 210, 216 governed HFP for the period in question.  The law gave the Secretary of Defense discretionary authority to pay HFP at the rate of $55 a month; (2) The DoD Pay manual in 1979 appeared to only authorize HFP if a member endured hostile fire while in a designated “combat area” (Ref Table 1-10-1 from the member’s documents provided).  They found no provisions allowing payment outside a designated “combat area”; (3) During 1979, only Vietnam, Laos, Cambodia, and Iran (during the period of hostilities surrounding the seizure of the AmEmb) were designated “combat areas,” there is no record of Rhodesia being declared a designated “combat area”; and (4) The Secretary of Defense does not have the authority to retroactively declare an area authorized for HFP.  This action can only be accomplished through a legislative change.  They are unable to provide a relief recommendation for applicant since Rhodesia was not designated a “combat area.”  

A complete copy of the evaluation is at Exhibit C.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommended the requested relief be denied.  They stated, in part, that the law in effect at the time authorized the payment of HFP under three conditions.  If the member was: (1) subject to hostile fire or explosion of hostile mines; (2) on duty in an area in which he was in imminent danger of being exposed to hostile fire or explosion of hostile mines and in which, during the period he was on duty in that area, other members of the uniformed services were subject to hostile fire or explosion of hostile mines; or (3) killed, injured, or wounded by hostile fire, explosion of a hostile mine, or any other hostile action.  In implementing HFP, the Department of Defense Pay Manual, Table 1-10-1, HFP-CONDITIONS OF ENTITLEMENT, Rule 5 authorized its payment to members who were “not on duty in a designated hostile fire area and participated in a hostile encounter while on duty or on board the same vessel or aircraft which was the subject of hostile fire.”  In 1979, Zimbabwe-Rhodesia was not a designated “hostile fire area” but the applicant was on board, and on duty, an aircraft which was the subject of hostile fire.  While the applicant may have been entitled to HFP, his request to be awarded HFP should be denied based on the Barring Act.  JAA has previously opined that the Barring Act applies to this Board, defeating applications for relief pertaining to matters within its scope that are filed more than six years after the accrual date.

In the applicant’s case, 24 years ago, he relied on the actions of others to assert his HFP and ensuring it was received by the “official responsible” for approving or certifying it.  The responsible official was the local commander—whether home station or hostile fire area is unclear, but the burden rested solely with the applicant, not the Air Force, to ensure its timely and accurate processing.  The applicant attempts to excuse his failure to pursue his claim due to military relocations and that it was not until October 2004 “during a search for DD Form 214 support documents…that this request could be supported.”  Regardless of the reasons, the applicant’s failure to assert a claim was, and remains, subject to the Barring Act’s six-year statute of limitations and if there was any error or injustice created, it was due to his failure to assert a timely HFP claim under the Barring Act.

A complete copy of the evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 Feb 05, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.  (Exhibit D)

On 11 Aug 05, a copy of the JAA evaluation was forwarded to the applicant for review and response within 30 days; however, no response has been received.  (Exhibit F)

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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 careful review of the applicant’s complete submission, we find that his request should be denied under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed asserting a claim.  In our opinion, the burden of ensuring timely processing of his claim against the Air Force rested solely upon the applicant.  Waiting 24 years to initiate this claim, when there was no compelling excuse, was clearly an unreasonable delay.  The applicant asserts that unidentified individuals at the Headquarters Military Airlift Command level acted contrary to existing regulations for reasons that were never revealed when they denied his request for Hostile Fire Pay for the 21 December 1979 mission.  However, his unreasonable delay in filing his claim has also prejudiced the Air Force’s ability to defend against the claim as relevant records/evidence have been lost or destroyed, and memories of the precise nature of the events have faded.  Based on the foregoing, 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 BC‑2004-03809 in Executive Session on 31 March and 30 September 2005, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Dec 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AF/DPPC, dated 10 Feb 05.
    Exhibit D.  Letter, SAF/MRBR, dated 18 Feb 05.
    Exhibit E.  Memo, HQ USAF/JAA, dated 29 Jul 05.
    Exhibit F.  Letter, AFBCMR, dated 11 Aug 05.