RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01605 INDEX CODE: 102.02
XXXXXXX.	COUNSEL: NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
He be restored to the grade of technical sergeant (TSgt).

APPLICANT CONTENDS THAT:
He was promoted to the grade of TSgt on 1 August 1979; however, he was removed from the list because he had received a Letter of Reprimand (LOR) for being five pounds overweight from his commander. He also believes that this was in retaliation against him because court-martial charges were dropped by the convening authority.

Applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:
The applicant enlisted in the Regular Air Force on 13 December 1961 and was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 April 1969.

On 20 November 1972, the applicant received disciplinary punishment for failure to go at the time prescribed to his appointed place of duty and using disrespectful language to a noncommissioned officer. His punishment consisted of suspended reduction to sergeant.

On 25 March 1976, the applicant received a Letter of Reprimand for being insubordinate to a senior noncommissioned officer.

On 23 January 1979, the applicant received a referral airman performance report due to his unsatisfactory progress on the weight management program, inability to cope with personal problems, his poor utilization of time and lack of aggressiveness.

On 21 August 1981, applicant was notified by his commander of his intent to impose nonjudicial punishment under Article 15, UCMJ.

The specific reason for this action was that he was charged with insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. He was reduced to the grade of sergeant and ordered to forfeit $100 per month for one month, but the execution of the reduction to the grade of sergeant was suspended until 30 December 1981.

On 31 December 1981, he was honorably discharged after serving 20 years and 18 days of total active service in the grade of staff sergeant (High Year of Tenure).

AIR FORCE EVALUATION:
AFPC/DPSOE recommends  that the applicant’s request be time barred. The applicant did not file the application within the three-year limitation imposed by AFI 36-2603, Air Force Board for Correction of Military Records. In addition to being untimely, 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. The 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.

AFPC/DPSOE’s complete evaluation is at Exhibit C.
AFPC/DPSOR recommends denial and states that in accordance with Title 10, Section 1552, Correction of Military Records, no correction may be made unless the claimant files a request for the correction within 3 years after he discovers the error or injustice. The applicant retired over 26 years ago.

AFPC/DPSOR’s complete evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the Air Force evaluations and provided a copy of his August 1979 Leave and Earning Statement (LES) indicating he was entitled to pay and allowances as a TSgt however, it was this promotion action that was stopped.

Applicant’s response, with attachment, is at Exhibit F.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.
1.	
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, the Board is not persuaded that approval of his request is warranted. In this respect, we note that the applicant received a referral enlisted performance report for failure to progress on the Weight Management Program during the eligibility promotion cycle for TSgt. In accordance with AFR 35-11, Air Force Fitness, failure to progress on the program could result in denial of promotion. It appears, based on upon the LES the applicant presented as evidence that the commander rendered the applicant ineligible for promotion to TSgt. In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. We have no such showing here. The applicant has not provided any evidence showing that the imposing commander abused his discretionary authority by denying him promotion to TSgt. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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 Docket Number BC- 2008-01605 in Executive Session on 4 October 2007, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-01605:

Exhibit A.	DD Form 149, dated 24 Apr 2008. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Letter, AFPC/DPSOE, dated 8 May 08.
Exhibit D.	Letter, AFPC/DPSOR, dated 16 May 08. Exhibit E.	Letter, SAF/MRBR, dated 13 Jun 08.
Exhibit F.	Applicant’s Response, dated 18 Jun 08, w/atchs.