RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060010600 


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


Mr. Gerard W. Schwartz

Acting Director

Mr. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Larry C. Bergquist

Member

Ms. LaVerne M. Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, promotion to pay grade E5 and the difference in pay between pay grade E1 and E5, including pay for unused leave.

2.  The applicant states, in effect, that, upon separation, he was paid only as a private, pay grade E1.  He notes that his DD Form 214 (Report of Separation from Active Duty) was corrected, but he never received the difference in pay. Furthermore, he would have been selected for promotion to pay grade E5 had he not been unjustly convicted.     

3.  The applicant provides copies of his DD Form 214 and the memorandum opinion from the Army Court of Military Review. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 April 1978.  The application submitted in this case is dated 15 July 2006.

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted, on 30 October 1973 with a waiver for pre-service civilian convictions.  He completed training as an equipment storage specialist and was advanced to pay grade E2.    

4.  He received nonjudicial punishment (NJP) under the provisions of The Uniform Code of Military Justice (UCMJ), Article 15, on 29 January 1975 for repeated absences from his place of duty and was reduced to pay grade E1.  

5.  Notwithstanding further NJPs on 25 March and 11 July 1975, the applicant was advanced to pay grade E2 on 10 September 1975, E3 on 17 September 1975 and to pay grade E4 on 19 December 1975. 

6.  On 14 July 1976 the applicant received a fourth NJP.  The punishment included reduction to pay grade E1 (suspended for 60 days).  On 5 November 1976 he was awarded the Good Conduct Medal.  

7.  The applicant and another Soldier were retained beyond the estimated time of separation (ETS) to be tried for rape and assault.

8.  On 15 March 1977, the applicant was convicted of rape and sodomy.  The sentence included reduction to pay grade E1, total forfeitures, confinement for 2 years and a bad conduct discharge.  He was confined at the United States Disciplinary Barracks at Fort Leavenworth, Kansas, granted parole and released from confinement on 23 November 1977.   

9.  On 22 March 1978 the Army Court of Military Review considered the case and concluded that the available evidence did not show beyond a reasonable doubt that the applicant was guilty.  The findings of guilty and the sentence were set aside and the charges dismissed.

10.  On 28 March 1978 all rights, privileges and property of which the applicant had been deprived were ordered restored. 

11.  The applicant was separated with an honorable discharge due to the completion of required service on 28 April 1978.  His DD Form 214 shows his rank (Item 6a) as private E-1 and his pay grade I(tem 6b) as E1.  His date of rank (Item 7) is shown as 15 March 1977.

12.  On 20 March 1979 a correction to the DD Form 214 was issued changing the rank to specialist four, the pay grade to E4 and the date of rank to 19 December 1975.

13.  There is no information in the available records concerning the final disbursements and the applicant provided none. 

14.  Title 31, U. S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.


DISCUSSION AND CONCLUSIONS:

1.  More than 27 years have passed since the applicant's DD Form 214 was corrected in March 1979, and it cannot be determined exactly what happened when the applicant's pay accounts were settled.

2.   Regrettably, due to the passage of time, there is insufficient evidence to show the applicant was improperly denied the proper pay.  

3.  Given the provisions of the barring statute the applicant could not be paid unless he can demonstrate that he applied for and was denied the proper pay and that he has exhausted any administrative appeals procedure.

4.  Given the applicant's overall record of indiscipline his assertion that he would have been promoted to pay grade E5 is unconvincing. 

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 April 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 April 1981.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LMD__  __LCB___  _TSK ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.


 
__    Ted S. Kanamine_____
          CHAIRPERSON



INDEX

CASE ID
AR20060010600
SUFFIX

RECON

DATE BOARDED
20060227
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128.14
2.

3.

4.

5.

6.