RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:		DOCKET NUMBER:  BC-2013-05330


				COUNSEL:  NONE

				HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

His record be corrected to restore his grade to Staff Sergeant (SSgt), 
E-5 and he receive back pay or any compensation due.


APPLICANT CONTENDS THAT:

He feels his rank of SSgt should not have been taken away.  He flew 
missions over Germany and received a diploma for completing an Army 
training course at Denver Colorado.  He is almost 90 years old and would 
like to go out as a SSgt.

In support of his request, the applicant submits copies of his honorable 
discharge certificate, technical training school diploma, enlisted 
record and report of separation-honorable discharge, and documents 
pertaining to his congressional inquiry.

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


STATEMENT OF FACTS:

The applicant initially entered the Army Air Corp on 20 January 1943.

On 22 Sept 1945, the applicant was furnished an honorable discharge, and 
was credited with 2 years, 8 months, and 02 days of active service.

The remaining relevant facts pertaining to this application are 
described in the letter prepared by the Air Force office of primary 
responsibility (OPR), which is attached at Exhibit C.


AIR FORCE EVALUATION:

AFPC/DPSOE recommends the applicant’s request be time barred. They 
assert that the applicant’s delay regarding a matter now dating back 68 
years has greatly complicated the ability to determine the merits of his 
position.  The application has not been filed within the three-year time 
limitation imposed by AFI 36-2603, Air Force Board for Correction of 
Military Records (AFBCMR), paragraph 3.5.  In addition to being untimely 
under the statute of limitations, the applicant’s request may 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 there from.  In the applicant’s case, he waited 68 
years after his discharge to petition the AFBCMR.  The applicant’s 
unreasonable delay has also caused prejudice to the Air Force as 
relevant records have been destroyed or are no longer available, 
memories have failed and witnesses are unavailable.

Although the applicant’s Report of Separation reflects highest grade 
held as Staff Sergeant, there are no documents to indicate why his rank 
at time of discharge was Private First Class.  Based on the extremely 
limited records and the passage of time, it is not possible to determine 
if promotion to a higher grade was appropriate.  While the applicant may 
have been deserving of promotion, in the absence of documentation to the 
contrary, they must assume he was discharged in the proper grade.  
Should the Board choose to decide the case, recommend it be denied based 
on lack of official documentation. 

A complete copy of the AFPC/DPSOE evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his request, the applicant submits a handwritten 
letter in which he reiterates his contention and provides additional 
comments regarding his grade.  He states that as a result of an eye 
problem from looking into the sun as a tail gunner on a B-17 Bomber, he 
was removed from flying status.  After his eye problem cleared up he 
made three requests to be reinstated to flying status.  His requests 
were refused.  He was told there were no openings for a Staff Sergeant 
with the ground personnel so his grade was reduced, without prejudice, 
to Private First Class.  He was very young at that time and thought that 
was the way it had to be.  

The applicant’s complete response is at Exhibit E. 


THE BOARD CONCLUDES THAT:

After careful consideration of the evidence of record to include the 
applicant’s rebuttal, 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.  The applicant has not shown a sufficient 
reason for the delay in filing on a matter now dating back 68 years, 
which has greatly complicated the ability to determine the merits of his 
position.  He has not provided evidence that supports he is the victim 
of error or injustice.  Therefore, in view of the above, we cannot 
conclude it would be in the interest of justice to excuse the 
applicant’s failure to file in a timely manner.

THE BOARD DETERMINES THAT:

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-
2013-05330 in Executive Session on 04 September 2014, under the 
provisions of AFI 36-2603:

	 Panel Chair 
	 Member
	 Member

Although XXXXXXXX chaired the panel, in view of her unavailability, 
due to retirement, XXXXXXXXXX has signed as Acting Panel Chair.  The 
following documentary evidence pertaining to AFBCMR Docket Number BC-
2013-05330 was considered:

	Exhibit A.  DD Form 149, dated 9 Aug 2013, w/atchs.
	Exhibit C.  Letter, AFPC/DPSOE, dated 16 Dec 2013.
	Exhibit D.  Letter, SAF/MRBR, dated 1 Aug 2014.