RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-03998
		INDEX CODE:  131.01, 107.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

He should have been promoted one grade for serving during World War II (WWII) and his records were never corrected.

In support of the request, the applicant provides a copy of his Army of the United States Certificate of Service, a copy of WD AGO Form 53-98, Military Record and Report of Separation Certificate of Service, a copy of his Distinguished Flying Cross Certificate, a copy of a Certificate of Valor for Aerial Combat, two copies of his Honorable Discharge Certificate, and a Certificate of Retirement from the Department of the Army.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a second lieutenant on 28 May 43, and served as a fighter pilot.  He was promoted to the grade of first lieutenant on 7 Jul 44.  He was relieved from active duty on 18 Nov 45.

His report of separation reflects he was awarded the Distinguished Flying Cross, and the Air Medal w/4 Oak Leaf Clusters.  He served in the Air Offensive over Europe, Balkans, Northern France, Southern France and Rome Arno battles and campaigns.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial.  DPSOO states, in part, that based on Army Air Force Letter 3-87, dated 9 May 44, officers who submitted requests for relief from active duty could not be recommended for promotion.  A review of the applicant’s records shows that on 28 Aug 45, he requested to be relieved from active duty to enter medical school.  His request was approved and he was relieved from active duty.  Therefore, he was not eligible to be promoted.  

The applicant was undergoing disciplinary action under the 104th Article of War.  Based on this information, they do not believe he would have been recommended for promotion under any provision of policy or law.

DPSOO states the case should be dismissed as untimely.  The very reasons for having a statute of limitations, like that found in 10 U.S.C. 1552 and AFI 36-2603, include the fact that stale claims cannot be adequately addressed because the passage of time has resulted in the loss or destruction of the records needed to adjudicate the claim.  

The burden of proof rests with the applicant.  When the records no longer exist to verify his allegations, there is no basis upon which to grant relief.  It would not be in the interest of justice to waive the time limit and decide the case on its merits.  

The applicant has not provided sufficient documentation to substantiate that he was eligible for or recommended for promotion to captain prior to his relief from active duty.  There are no provisions in policy or law that provided for automatic promotion based on serving through the victory in WWII.  

The complete AFPC/DPSOO evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He requests the Board provide him the broadest consideration of his claim.  He provided additional excerpts from his personal and military personnel records.

The applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

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.  Evidence has not been provided which would lead us to believe the rules of the applicable Air Force Regulations, which implement the law, were inappropriately applied or the applicant was denied rights to which entitled.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  In the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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-2008-03998 in Executive Session on 11 Jun 09, under the provisions of AFI 36-2603:

		XXXXXXXXXX, Panel Chair
		XXXXXXXXXX, Member
		XXXXXXXXXX, Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 24 Oct 08, w/atchs.
	Exhibit B.	Applicant's Available Military Personnel Records.
	Exhibit C.	Letter, AFPC/DPSOO, dated 5 Dec 08.
	Exhibit D.	Letter, SAF/MRBR, dated 9 Jan 09.
	Exhibit E.	Letter, Applicant, dated 9 Jan 09, w/atchs.

                                   XXXXXXXXXX
                                   Panel Chair