RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER: BC-2007-04073
INDEX CODE:  131.03
								COUNSEL: NONE

								HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His records be corrected to reflect that he served in the United States Army from 24 February 1943 to 2 August 1946, he was promoted to the grade of second lieutenant (2Lt) effective 13 February 1946, and he was promoted to the grade of first lieutenant (1Lt) at the time of his separation on 2 August 1946.  

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APPLICANT CONTENDS THAT:

He was recommended for appointment as a 2Lt and received paperwork showing his rank as 2Lt.  In addition, all pilots who went through the Separation Center at Camp Beale received a promotion before being discharged; therefore, he should have been separated as a 1Lt.  

In support of his appeal, the applicant provides a personal statement, military history, Department of Veteran’s Affairs (DVA) Rating Decision, separation documentation, enlistment record, officer appointment documentation, assignment documents, and a referral letter from the Army Board for Correction of Military Records.   

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

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STATEMENT OF FACTS:

On 16 October 1942, the applicant enlisted in the Army Enlisted Reserve Corps in the grade of private.  On 24 February 1943, he was ordered to active duty to complete basic training and subsequently, attend the Aviation Cadet Course.  Following his completion of the Aviation Cadet Course, he was appointed as a Flight Officer and rated as a pilot on 23 May 1944.  On 10 December 1945, it was recommended he be appointed a 2Lt in the Army of the United States.  On 13 February 1946, by direction of the President, he was given a temporary appointment to the grade of 2Lt and commissioned in the Army.  Pacific Air Command Order #AG 201, dated 18 February 1946, Subject:  Appointment of Officer, indicates that special orders terminating the applicant’s appointment as a Flight Officer, calling him to active duty as a second lieutenant, rating and placing him on flying status would be published by the same headquarters upon receipt of his accomplished Oath of Office and pertinent forms.  An Army Service Forces Ninth Service Command letter, dated 30 June 1946, indicates the applicant, in the grade of Flight Officer, was transferred to the Separation Center, War Department Personnel, Camp Beale, California, for processing and separation from the armed service.

According to the applicant’s WD AGO Form 53-98, Military Record and Report of Separation, he served in the Army Air Corps from 23 May 1944 to 2 August 1946.  His separation documents reflect the applicant was separated in the grade of Flight Officer.  

On 24 March 1947, by order of the President, the applicant was appointed a second lieutenant, Air Corps, Army of the United States effective 24 January 1947.  The order indicates the officer “…will enter active duty under this commission only when specifically ordered to such active duty by competent authority.”

On 29 February 2008, ARPC/DPSIPV, verified the applicant’s date of entry on active duty should be corrected to reflect 24 February 1943.  Subsequently, they directed AFPC/DPSOY to correct Block 26 of the applicant’s WD AGO Form 53-98, and Block 34, to correct his current tour of active duty to reflect two years, seven months, and seven days.  

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AIR FORCE EVALUATION:

AFPC/DPSOO recommends denying the applicant’s request to correct his records to show he was appointed a 2Lt while on active duty.  DPSOO states the applicant did not provide any evidence to support this contention or that he would have been eligible for promotion to 1Lt.  

DPSOO states that on 13 February 1946, the applicant was advised of his appointment as a 2Lt and that execution and return of the required Oath of Office constituted his acceptance of the appointment.  On 18 February 1946, his commanding officer was advised of the appointment and that separation orders terminating his appointment as a Flight Officer and orders calling him to active duty as a 2Lt would be accomplished upon receipt of the Oath of Office and pertinent forms.  There is no evidence to show that he completed the Oath of Office and accepted his appointment as a 2Lt.  The applicant has provided copies of orders reflecting his grade as 2Lt; however, these orders were issued by his squadron and are not official source documents to support his appointment as a 2Lt.  All official headquarters documents reflect his grade as a Flight Officer.  The applicant’s record was requested from the National Personnel Records Center in St. Louis, MO; however, they are not on file and have been determined as possibly being destroyed in a 1973 fire.  Therefore, there is insufficient documentation to support his contention that he accepted his appointment as a 2Lt and would have been eligible for promotion to 1Lt at the time of his separation.  

Additionally, DPSOO strongly recommends the Board find that excusing the applicant’s excessive delay in submitting his appeal would not be in the best interest of justice, and deny the application as untimely.  DPSOO has no recommendation should the Board elect to grant relief to the applicant over their objection.  

The DPSOO evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends his application was timely.  It was not until he received a report dated 14 August 2007 from the DVA incorrectly listing his entry into the military service as 23 May 1944, that he discovered his records were incorrect.  He not only filed his claim within three years after discovery, he filed it within three weeks after his discovery.  He claims there is more than enough evidence to show he took the Oath of Office.  From February 1946 until he returned to the United States in July 1946, he was addressed as Lieutenant and the orders he received referred to him as Lieutenant.  He has provided photographs with his rebuttal to show him wearing the gold 2Lt bars as authorized by the commanding officers of his squadron and his group after he took his oath.  He was a lieutenant in the eyes of his comrades and superior officers and on the records of his squadron and group.  

He has already proved the military records maintained by the Air Force were incorrect because they understated his years of service by some 15 months.  His request for correction of his active duty service dates was granted without AFPC complaining they could not locate his records to support this request.  If the military can make a mistake of that magnitude in computing his time served on active duty, then it’s not surprising to him that his promotion records were misplaced or lost due to some human ministerial error.  He respectfully submits that his request be granted, his promotion recognized, and his military records be corrected.

The applicant’s 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 an error or an 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 office of primary responsibility that there is no evidence the applicant ever completed the required Oath of Office while on active duty.  We note the applicant submitted a Presidential citation, dated 24 March 1947, as evidence indicating he was appointed to the grade of 2Lt effective 24 January 1947; however, the appointment is effective after his date of separation from active duty and his subsequent transfer to the Reserve.  If the applicant received a Reserve appointment to 2Lt (supporting documentation unavailable), it does not affect his rank while on active duty or the rank reflected on his WD AGO Form 53-98 (flight officer).  Based on the aforementioned, we conclude the applicant has not been the victim of an error or injustice.  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 this application in Executive Session on 29 May 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-04073:

	Exhibit A.  DD Form 149, dated 26 Nov 07, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSOO, dated 20 Feb 08.
	Exhibit D.  Letter, SAF/MRBR, dated 28 Mar 08. 
	Exhibit E.  Applicant’s Rebuttal, dated 5 Apr 08, w/atchs.