RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03381 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He receives a retroactive promotion to the grade of captain (O-3) effective no later than his discharge on 26 Jan 1946. ________________________________________________________________ APPLICANT CONTENDS THAT: He was assigned flying duties and tasks during war time service that were commensurate with the grade of at least a captain. He was attached to a unit in North Africa but could not be promoted since he was not formally assigned to the unit. For this reason, and the general fog of war, he was not promoted to the grade of captain. The injustice has existed for over 67 years. In support of his request, the applicant provides a chronology of his military service, photographs, maps, autobiographical overview, Army of the United States Certificate of Service, WD-AGO Form 53-98, Military Record and Report of Separation; and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was a member of the Army Air Force from 14 Jan 1943 to 26 Jan 1946. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOO recommends denial. There is insufficient evidence to support his contention that he was either eligible or recommended for promotion to the grade of captain. Without any official documentation, DPSOO is unable to support the request. Furthermore, the application is untimely and may be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed in 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 60 years. Under Army Regulation 605-12, Temporary Promotions in the Army of the United States, 17 Aug 1944, no recommendation for promotion of an officer will be initiated unless a position vacancy exists and the officer served the maximum period in the next lower grade. For promotion to the grade of captain, the Time in Grade (TIG) requirement as a first lieutenant was 9 months, DPSOO believes the applicant may have met the TIG requirement, but DPSOO cannot verify his Date of Rank (DOR) to the grade of first lieutenant. In addition, DPSOO is unable to verify if the applicant was ever recommended for promotion. The applicant’s records were requested from the National Personnel Records Center (NPRC). His records are not on file and it has been determined if they had been there on 12 Jul 1973, they would have been in the area that suffered the most damage in the fire on that date and may have been destroyed. Therefore, there is insufficient evidence to support his contention that he should have been promoted to the grade of captain. Furthermore, DPSOO cannot determine if the applicant met the eligibility criteria for a terminal leave promotion prior to his separation from active duty. The complete DPSOO evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states as to the untimely nature of the request, the applicant lived a productive life following his service during World War II always feeling slighted at not having been properly promoted to the grade of captain. He was unaware of the available recourse to correct such matters and it was only recently when his story was told to others did he become aware of the avenues for correction of records. In any case, the error persisted in spite of the delay and should not be a reason for disapproval. Since his records were not available from the NPRC, there are no records to support his claim. By the same token, there are no records from the NPRC to refute the claim. He should not suffer from the loss of military records destroyed while in the care of the Government. The applicant retained many of his military records and they are submitted to justify approval of the application. He asks the Board to consider that he was assigned flying duties and tasks during his war time service that were commensurate with at least the grade of captain. He was a flight commander of five C-47’s ferried from Florida across the Atlantic Ocean to North Africa, a responsibility usually assigned to an officer in the grade of captain or major. He was attached to, but not a member of a unit in Africa during that period and as a result, although qualified, he could not be promoted by the unit. Other than advancement to the grade of captain, no other consideration such as back pay or other benefits is requested. The applicant’s complete response, with attachments, is at Exhibit D. ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: After careful consideration of the evidence of record, we find the application untimely. 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 sufficient reason for the delay in filing on a matter now dating back over 67 years, which has greatly complicated the ability to determine the merits of the application. Moreover, the applicant has not provided substantial evidence which would persuade us that his records should be corrected to show he was promoted to any grade higher than that reflected in his military records. Therefore, 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 applicant’s failure to file in a timely manner. ________________________________________________________________ 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 Docket Number BC-2013-03381 in Executive Session on 15 May 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following pertinent evidence was considered in Docket Number BC-2013-03381: Exhibit A. DD Form 149, dated 10 Jul 2013, w/atchs. Exhibit B. Letter, AFPC/DPSOO, dated 31 Jan 2014. Exhibit C. Letter, SAF/MRBR, dated 7 Mar 2014. Exhibit D. Letter, Applicant’s Counsel, dated 20 Mar 2014, w/atchs. 1 2