MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 12 August 2003
         DOCKET NUMBER: AR2003085253

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his request that his Noncommissioned Officer Evaluation Report (NCOER) for the period June 1989 through September 1989 be removed from his records and that his records be corrected to show he was promoted to Sergeant First Class (SFC), E-7 with all due back pay and allowances.

APPLICANT STATES: In effect, that he was reprised against for making an Inspector General (IG) complaint.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 19 November 1998 (AC98-09062). His application to that Board was dated 29 March 1998.

As new evidence, the applicant provides a memorandum, dated 8 August 1990, from him to the U. S. Army Enlisted Records and Evaluation Center (as part of his NCOER appeal). The memorandum is on U. S. Army Trial Defense Service, Alaska Field Office, Fort Richardson, AK letterhead. The memorandum states, "The 5th Signal Command Office of the Inspector General performed an inquiry into allegations of leadership incompetence addressed to the Commander-in-Chief, United States Army, Europe by Theresa A. C___. (This was apparently the applicant's spouse.) He adds a note to the bottom of the memorandum stating he was restricted by his chain of command from communicating with the IG. The memorandum further states, "Findings against SSG C___'s rating chain from an official inquiry were substantiated by the 5th Signal Command Inspector General's letter, dated April 26, 1990. Due to Mrs. C___'s rights to privacy, I am unable to provide the letter."

The applicant provides a 14 November 1989 memorandum from a fellow unit member (prepared in support of the applicant's NCOER appeal) which states in part, " [the applicant] discovered that his rating chain displayed character flaws…and informed his rating chain/chain of command to no avail. As a result of [the applicant] addressing the matter; a personality conflict developed, coercive leadership utilized, had an unjust evaluation."

The applicant provides his basic NCOER appeal memorandum, dated 8 August 1990. This document was available to the 19 November 1998 Board panel.

The applicant also provides a memorandum from him to the Deputy Under Secretary of Defense for Program Integration dated 7 October 2002. In this memorandum, he requested his case be appealed under Whistleblower Protection. He provides another letter, dated 31 October 2002, to the same office. In that letter, apparently a response to a September 2002 communication from that office to him, he states that he alleged reprisal in his 1998 Board case.
He stated he provided the Board with the name, address, and telephone number of IG personnel so they could request a copy of the investigation report (apparently referring to the 8 August 1990 memorandum from him to the U. S. Army Enlisted Records and Evaluation Center).

The applicant provides a letter from the Office of the Under Secretary of Defense to him dated 27 December 2002. That letter informed the applicant that their office provided him erroneous information in earlier correspondence. That office verified that the Board had not considered his original case under the protection of the Whistleblower Protection Act.

In 1987, the applicant applied to the Board for correction of the effective date of his promotion to Staff Sergeant, E-6.

The applicant retired on 31 March 1996 in the rank of Staff Sergeant.

The Board analyst was informed on 4 August 2003 that the Department of the Army IG's records did not go back to 1990 and they had no record of the applicant's IG action. The Board analyst was informed on 6 August 2003 that the 5th Signal Command IG had no record of the applicant's IG action. Their files are retained for only 6 years.

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: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes that the applicant stated the 5th Signal Command IG substantiated his allegations that he was reprised against; however, the IG findings are not available and the applicant has not provided them. The Board notes his contention that he provided contact names with his 1998 application so the Board could obtain a copy of the investigation. However, it does not appear that the memorandum that contained those contact names was provided with his 1998 application to the Board. Moreover, it appears that even if it had been provided the IG investigation would have been unavailable. By that time, 8 years had passed since the investigation was evidently completed. It appears that IG records are not retained beyond 6 years.

2. In addition, promotion to senior enlisted grades is contingent upon a number of conditions. To presume the applicant would have been promoted to SFC even if the contested NCOER had been expunged from his records is purely speculative.

3. Furthermore, the Board concludes that granting relief at this point in time would offer benefits to the applicant without the Army receiving reciprocal benefits in the way of his performing duties at the increased rank and responsibility. The applicant had submitted an application to the Board in 1987 (concerning the effective date of his promotion) so he was aware of the Board's availability to resolve his NCOER/promotion problem. Yet, he waited until about 9 years after he received the contested NCOER and 2 years after he retired as a Staff Sergeant to apply to the Board for relief. Due to the passage of time, favorable consideration of the applicant’s request would be barred by laches if the statute of limitations were waived. The Board concludes that it is not in the interest of justice to waive the statute.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rsk___ __wdp___ __fcj___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003085253
SUFFIX
RECON
DATE BOARDED	20030812
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	111.02
2.	131.00
3.
4.
5.
6.