RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03659 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Airman Performance Reports (APR), rendered for the periods 7 Feb 69 through 30 Sep 69 and 1 Oct 69 through 31 Mar 70, be removed from his records, or the overall rating for each be upgraded to a “9.” 2. He be retroactively awarded the Meritorious Service Medal (MSM) or Air Force Commendation Medal (AFCM) for his service in the Republic of Vietnam. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. For one year of service to his country, he received two unjust, nonfactual, and inaccurate ratings of his performance. Both APRs are identical and the ratings represent a gross error and injustice. The actions of his rating officials were wrong and should never have happened. They failed as senior non- commissioned officers to perform accurate and factual ratings on their subordinates. He was the night shift supervisor of the phase dock during the period in question which is not reflected on his APR. 2. The only awards he received for his service in Vietnam were issued by the government of Vietnam. He worked hard under extremely difficult conditions (e.g. weather, the environment, and regular rocket attacks). He did not have the support of the American people or the two supervisors that were there to put in their time and go home. They were too lazy to do the right thing. In support of his request, the applicant provides copies of his performance reports, to include the contested reports, as well as a proposed citation for the requested award. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he served in the Regular Air Force and was progressively promoted to the grade of senior master sergeant (E-8), effective and with a date of rank of 1 Sep 85. On 30 Sep 88, he was released from active duty and retired for length of service on 1 Oct 88. He was credited with 21 years and 28 days of total active service. On 17 Dec 10, AFPC/DPSIDRA notified the applicant that he had failed to exhaust all of his administrative remedies relative to his request for a decoration and provided him with guidance pertaining to the administrative remedies available under the provisions of the 1996 National Defense Authorization Act. Additionally, they notified him of their determination of his entitlement to four bronze service stars (BSS) to his previously awarded Vietnam Service Medal and their action to correct his records administratively. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial with respect to the applicant’s request for removal or upgrade of the contested APRs, indicating there is no evidence of an error or injustice. While the applicant believes the identical performance reports issued to him while in Vietnam represent an injustice; AFM 36-62 does not prohibit evaluators from doing so. Paragraph 4-6(b)(2) states that reporting officials should prepare the narrative portion of the report with a sincere desire to communicate their evaluation to the ratee. Additionally, while the applicant states the reports are identical, the additional endorsements are different and signed by different evaluators. Furthermore, an evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from the record. The burden of proof is on the applicant and he has not substantiated the contested reports were not rendered in good faith by all evaluators based on knowledge available at the time. The applicant’s request to void or upgrade the reports should be denied based on the merits, but can also be denied under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed in asserting a claim. In the applicant’s case, he waited 41 years to file his application and took no prior action. As a result of this delay, the Air Force no longer has documents on file concerning this issue and memories have faded, undermining the Air Force’s ability to determine the merits of his position. A complete copy of the AFPC/DPSID 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 4 Feb 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: We have carefully reviewed the applicant’s submission and the evidence of record and do not find a sufficient basis to excuse the untimely filing of this application. The applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records. The applicant has not shown a plausible reason for the delay in filing, and we are not persuaded the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the untimely filing of this 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 AFBCMR Docket Number BC-2010-03659 in Executive Session on 6 Jul 11, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-03659 was considered: Exhibit A. DD Form 149, dated 1 Oct 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 27 Jan 11. Exhibit D. Letter, SAF/MRBR, dated 4 Feb 11.