RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02397
				INDEX CODE:  107.00
				COUNSEL:  None

				HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he received a promotion to technical sergeant (TSgt) while he was a Prisoner of War (POW). 

EXAMINER’S NOTE:  On 7 September 2004, AFPC/DPPPRA informed the applicant upon review of his records his eligibility had been verified for award of the Prisoner of War (POW) Medal, the American Campaign Medal and the World War II Victory Medal.  On 10 September 2004, a DD Form 215 was issued adding the POW Medal, the American Campaign Medal and the World War II Victory Medal to his DD Form 214.  Therefore, the only remaining issue for the Board to consider is the applicant’s request regarding when he was promoted to TSgt.

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APPLICANT CONTENDS THAT:

He was overlooked.

Applicant's complete submission, with an attachment, is attached at Exhibit A.

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STATEMENT OF FACTS:

The available records reflect the applicant served on active duty from 3 November 1942 to 29 September 1945.

The Army Repatriation and Family Affair Division verified the applicant was a POW from 22 March 1944 to 1 May 1945.

The applicant was honorably discharged in the grade of TSgt on 29 September 1945.

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AIR FORCE EVALUATION:

HQ AFPC/DPPPWB states in accordance with the Military Personnel Division, ASF, Department of the Army Message 212259Z Sep 45, recovered personnel must have been absent from military control under honorable conditions for eighteen months or longer, and have not yet received a one grade promotion since return to military control, in order to be eligible for a POW promotion.  The applicant was a POW for 13 months and does not meet the prerequisites for a promotion.

The applicant’s records reflect the highest grade held and the grade at the time of discharge was TSgt.

Furthermore, the applicant has not filed his claim within the three-year time limit.  The applicant's request can also be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed asserting a claim.  Laches consists of two elements:  Inexcusable delay and prejudice to the Air Force resulting therefrom.  In the applicant's case, he waited over 59 years before he petitioned the Board.  The applicant's delay in filing a claim has caused prejudice to the Air Force as relevant records have been destroyed or are no longer available, memories have failed and witnesses are unavailable. 

DPPPWB further states in the absence of any documentation to the contrary, they must assume the applicant was discharged in the correct grade.  

A complete copy of the Air Force evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 17 September 2004, for review and response.  As of this date, no response has been received by this office.  

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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.  The applicant’s contentions are duly noted, however, he has submitted no evidence to support these contentions.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of either an error or an injustice.  It has been verified the applicant was a Prisoner of War for 13 months; as a result, he did not meet the prerequisites for promotion as a Prisoner of War.  The applicant’s Enlisted Record and Report of Separation reflects he was discharged in the grade of technical sergeant.  Unfortunately, there was no documentation in his records to indicate when he was promoted to technical sergeant.  Therefore, based upon the presumption of regularity in the conduct of governmental affairs and without evidence to the contrary, we must assume that the applicant’s promotion to technical sergeant was proper and in compliance with appropriate directives.  While we are not unmindful or unappreciative of the applicant’s service to his Nation, in the absence of the 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 AFBCMR Docket Number BC-2004-02397 in Executive Session on 4 November 2004, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 25 July 04, w/atchs.
	Exhibit B.	Available Military Personnel Records.
	Exhibit C.	Letter, HQ AFPC/DPPPWB, dated 25 Aug 04.
	Exhibit D.	SAF/MRBR, dated 17 Sep 04.