RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 July 2007
      DOCKET NUMBER:  AR20070001611


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. James R. Hastie               |     |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, that he receive pay and allowances
and pay for unused accrued leave for the months of November 1951 through
April 1952.

2.  The applicant states he had an initial enlistment for 3 years with a 1-
year extension due to the war.  He only used 30 days of leave in a 4-year
period.         He believes he is owed [pay for] 90 days of leave, and he
was not paid for the     2 months he had duty Stateside.

3.  The applicant provides his DD Form 214 (Report of Separation from the
Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 April 1952.  The application submitted in this case is
dated          1 December 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 in the Regular Army on 20 April 1948.

4.  The applicant’s WD AGO Form 24A (Service Record) shows he took 11 days
of leave while enroute to Panama in fiscal year ending 30 June 1948; he
took zero days leave in fiscal year ending 30 June 1949; he took 21 days of
leave in fiscal year ending 30 June 1950; he took 15 days of leave in
fiscal year ending 30 June 1951; and he took 59 days of leave during fiscal
year ending 30 June 1952 (for 106 days of leave taken out of a total 120
days of leave accrued during his 4 years of service).

5.  The applicant was honorably discharged on 24 April 1952 after
completing     4 years of creditable active service.  His finance records
are not available; however, his WD AGO Form 24A contains the entry, “May 2
1952 Last paid to incl Apr 24 1952.

6.  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 AND CONCLUSIONS:

1.  The applicant contended he took only 30 days of leave during his entire
       4-year enlistment; however, the evidence of record shows he took at
least       106 days of leave, which would have left him with a leave
balance of 14 days.

2.  The applicant contended he was not paid for his last 2 months of
service and, in effect, he was not paid for unused accrued leave.  His
finance records are not available; however, the available evidence of
record shows he received his last pay.  There is no evidence of record and
he does not provide any evidence to show he was not paid for his last 2
months of service or that he was not paid for unused accrued leave.

3.  More than 50 years have lapsed in his case.  An arbitrary ruling in his
favor, without knowing what his finance records would have shown, would
cause prejudice to the Government.  Had he applied to the ABCMR within the
ABCMR’s statute of limitations, an equitable decision could possibly have
been made in his case.  However, since it is now more than 50 years after
his separation, the doctrine of laches is invoked in his case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 April 1952; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         23 April 1955.  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

__jpi___  __rml___  __jrh___  GRANT FORMAL HEARING

________  ________  ________  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.




                                  __John P. Infante_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001611                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070724                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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