RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02077 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be considered for a Regular commission. 2. His be considered for retroactive promotion to the grade of lieutenant colonel. _________________________________________________________________ APPLICANT CONTENDS THAT: The Officer Evaluation Report (OER) included in his records at the time of consideration for a regular commission by the 7-year Board was biased and detrimental. The report was subsequently removed; however, he believes it was the reason for his nonselection for a regular commission. If he had been selected for a regular commission, he would have been continued in service and eligible for promotion to the grade of lieutenant colonel. At the time of his separation, he had 14 years, 5 months of active commissioned service. As a Reserve officer, he could have served 20 years. He believes he would have been promoted to lieutenant colonel if he had remained on active duty. In support of his request, the applicant submits copies of his DD Form 214, Report of Separation from Active Duty, his retirement orders and voided OER. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was not selected for Regular Air Force (RegAF) by the Fiscal Year 66 (FY66), FY68 and FY70 Regular Air Force Selection Boards. At that time, RegAF boards were held at the 2, 4 and 7 year point. According to an AF Form 77a, Supplemental Sheet to AF Forms 77, on 17 June 1970, the applicant was not rated for the period 6 Aug 66 thru 27 Mar 67 as the report for this period was removed through appeals board action. The FY70 board would have been his 7-year board. The selection rate to RegAF for this board was seven percent for nonrated officers. Based on his date of rank to major of 1 Jun 73, he would have been eligible to meet the Calendar Year 78 (CY78) Lieutenant Colonel Board which convened on 21 Aug 78. On 1 Mar 77, the applicant retired from the Air Force Reserves in the grade of major. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSOO recommends denial. DPSOO states the applicant has not provided evidence that the OER in question was the sole reason for his nonselection to RegAF. In addition, he has not provided evidence that he would have been selected for lieutenant colonel had he been eligible to meet the board. DPSOO opines a direct promotion would be unfair to other officers who were not selected for Regular Air Force and required to retire at the 20 year point without being able to meet a lieutenant colonel promotion board. DPSOO notes both Congress and DoD have made clear their intent that errors ultimately affecting promotion should be resolved through the use of Special Selection Boards (SSBs). DPSOO states there are no grounds to grant an SSB for any board the applicant was not eligible to meet. DPSOO states the case should be dismissed as untimely. The applicant was on active duty for seven years after the report was removed and took no action during that time. DPSOO notes that stale claims cannot be adequately addressed because the passage of time could result in the loss or destruction of the records/documentation needed to adjudicate the claim. Therefore, it would not be in the interest of justice to waive the time limit and decide the case on its merits. The complete DPSOO evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 16 Sep 11, for review and comment within 30 days. As of this date, this office has received no response (Exhibit D). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The application was not filed within three years after the alleged error or injustice was discovered, or reasonably could have been discovered, as required by Section 1552, Title 10, United States Code (10 USC 1552), and Air Force Instruction 36- 2603. Thus the application is untimely. 2. Paragraph b of 10 USC 1552 permits us, in our discretion, to excuse untimely filing in the interest of justice. We have carefully reviewed applicant's submission and the entire record, and we do not find a sufficient basis to excuse the untimely filing of this application. The applicant has not shown a plausible reason for delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits at this time. Accordingly, we conclude that it would not be in the interest of justice to excuse the untimely filing of the application. _______________________________________________________________ DECISION OF THE BOARD: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 8 Mar 12, under the provisions of AFI 36- 2603: The following documentary evidence was considered in AFBCMR BC- 2011-02077: Exhibit A. DD Form 149, dated 31 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPSOO, dated 2 Sep 11. Exhibit D. Letter, SAF/MRBR, dated 16 Sep 11.