RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  BC-2008-01797
                             INDEX CODE:  111.01
XXXXXXX                      COUNSEL:  XXXXXXXXXX
	                           HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to show that he was promoted to the rank of captain.  

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APPLICANT CONTENDS THAT:

By tradition, his role as group navigator on various combat missions leading up to Victory in Europe (VE) Day would have resulted in his promotion to captain.  VE Day occurred on 8 May 1945 and on 16 May 1945 his group was ordered to prepare for return to the United States.  Due to the rush of moving personnel and supplies the paperwork was lost.  

In support of his request, the applicant provided a personal statement, copies of letters/memorandums, a copy of WG Form 53-98, Military Record and Report of Separation Certificate of Service; a copy of his certificate of service, enlisted record, officer’s sortie records and a article titled, A Chronicle of the 351St Bomb Group (H). 

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant’s military personnel records were destroyed by fire in 1973.  Therefore, the facts surrounding his promotion cannot be verified.  Data extracted from his reconstructed records reflects that he was commissioned in the Army Air Corps on 22 April 1944 in the grade of second lieutenant.  

On 15 November 1945, he was discharged in the grade of first lieutenant.

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AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial.  DPSOO states the reasons for having a statue of limitations include the fact that stale claims cannot be addressed because the passage of time has resulted in the loss or destruction of the records needed to adjudicate claims.  That is the case here.  The burden of proof rests with the applicant.  When the records no longer exist to verify his allegations, there's no basis upon which to grant relief.  Hence it would not be in the interest of justice to waive the time limit and decide the case on its own merits.  He has not provided any documentation to show he was eligible for promotion to captain prior to his release from active duty.  Given the unlikelihood of success on the merits, DPSOO strongly recommends the Board find that it would not be in the interest of justice to excuse the delay and deny the application as untimely.  

The complete DPSOO evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A Veterans’ Service Officer responded on behalf of the applicant, stating the disapproval is based primarily on the lack of corroborating records resulting from the fire in St Louis in 1973.  The contention is that it cannot be determined if he had enough time in grade to be eligible for promotion when his commander submitted the paperwork for promotion.  It is also contended that an opening could not be verified because the records were destroyed.  The applicant provided a letter from his former commander stating he submitted promotion papers; however, due to the rush to get the troops back the paperwork was lost.  If his commander was intelligent enough to do the job of helping the U.S. to victory, the Board could give him credit for knowing that he had enough time in grade and that there was an opening for captain.  Admittedly, his request was based on his reflection of his life at the age of 88.  He has no interest in remuneration.  He spent his life working and contributing to his community and would like the recognition he should have received.  This request should not be denied on the basis of missing records but should be granted on the basis of existing records.  Justice says that he did the job and should get the recognition.  The fact that the request was late in his life should not be relevant.  A character reference letter was also submitted in support of this application stating when working with elders it is not uncommon for them to unearth “unfinished business” when reviewing their lives, particularly in areas they would rather not remember.  He was eligible and recommended for promotion in a timely manner by his commander at the time.

The complete response, with attachments is attached at Exhibit D.

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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 available evidence and the applicant’s complete submission, we find no evidence which would lead us to believe that the applicant's service records should be corrected to show that he was promoted to any grade higher than that reflected in his military records.  The statement provided in support of his appeal is duly noted; however, absent substantive evidence showing that he met the requirements and was recommended for promotion to captain as outlined in AR 605-12, Commissioned Officers, Temporary Promotions in the Army of the United States, we are not compelled to recommend granting the relief requested.  Therefore, in the absence of evidence to the contrary, we find no 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 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-2008-01797 in Executive Session on 14 August 2008 under the provisions of AFI 36-2603:

			XXXXXXXXXX, Panel Chair
			XXXXXXXXXX, Member
XXXXXXXXXX, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-01797 was considered:

   Exhibit A.  DD Form 149, dated 14 January 2008, w/atchs.
   Exhibit B.  Letter, AFPC/DPSOO, dated 23 June 2008.
   Exhibit C.  Letter, SAF/MRBR, dated 27 June 2008.
   Exhibit D.  Letter, Applicant, dated 9 July 2008, w/atchs.

                                   XXXXXXXXXX
                                   Panel Chair