| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Ms. Irene N. Wheelwright | Chairperson | ||
| Mr. Walter T. Morrison | Member | ||
| Mr. Charles Gainor | Member |
APPLICANT REQUESTS: In effect, that his records be corrected to show he enlisted in pay grade E-5 or at least E-4 and that he receive back pay and interest. He states that he was discharged from the Pennsylvania Army National Guard (PAARNG) in pay grade E-5 and enlisted in the Regular Army the next day in pay grade E-2. He should have enlisted in pay grade E-5. It is possible his enlistment grade was a problem because he was erroneously given the service number of another soldier in the same company who held the rank of E-3 and that was not corrected. He had made many complaints that fell on deaf ears. As supporting evidence he provides his Report of Transfer or Discharge, DD Form 214; Correction to DD Form 214, Report of Separation from Active Duty, DD Form 215; a Physical and Mental Status on Release from Active Service, DA Form 1811; his Honorable Discharge Certificate from the PAARNG; his Honorable Discharge Certificate dated 20 May 1962 from the U. S. Army Reserve; and a corrected Honorable Discharge Certificate dated 20 May 1962 (correcting his service number).
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
He served in the PAARNG from 6 May 1954 - 5 May 1957 with service number __ ___ 238 when he separated as a Specialist 2 (pay grade E-5). A Request for Discharge or Clearance from Reserve Component, DD Form 368, dated 21 July 1958 showed his service number as __ ___ 328.
The applicant enlisted in the Regular Army on 21 July 1958. His enlistment contract showed he enlisted in pay grade E-1. It showed his service in the PAARNG and the fact he separated in pay grade E-5. It showed his PAARNG service number as __ ___ 328 and his Regular Army service number as __ ___ 328. Most of the documents in his records showed his service number as __ ___ 328 although some of them, including a carbon copy of his Service Record, DA Form 24, showed it as __ ___ 238.
The applicant's DA From 24 showed he entered the Regular Army as a Recruit, E-1 effective 21 July 1958 but was advanced to Private, E-2 effective 21 July 1958. He was promoted to Private First Class, E-3 effective 29 May 1959 and to Specialist Four, E-4 effective 8 July 1960.
The applicant was released from active duty on 8 July 1961 in pay grade E-4. His DD Form 214 showed his service number as __ ___ 328. He was discharged from the U. S. Army Reserve on 20 May 1962. His Honorable Discharge Certificate showed his service number as __ ___ 328.
On 2 December 1975, the applicant's DD Form 214 was amended to show his service number as __ ___ 238. His Honorable Discharge Certificate may have been corrected at the same time.
Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
The doctrine of laches is defined by Black’s Law Dictionary, sixth edition as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been, discovered on 21 July 1958, the date on which the applicant enlisted, or no later than 8 July 1961, the date on which the applicant was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 8 July 1964.
The application is dated 11 June 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__INW__ ___WTM__ __CG __ CONCUR WITH DETERMINATION
| CASE ID | AR2002075617 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/10/03 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 129.05 |
| 2. | 128.00 |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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