BOARD DATE: 22 December 2009
DOCKET NUMBER: AR20090003822
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests travel pay and leave pay for his last 15 days in the service from 1 September 1975 to 15 September 1975.
2. The applicant states that he filed a claim for $1,897.00 when he separated on 15 September 1975. When he checked on his claim again, he was told that his records were burned. He contends that he never received travel/vacation pay for 15 days.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his application.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 31 August 1972. He completed the required training and was awarded military occupational specialty 11B (light weapons infantryman). His highest grade held was private first class, E-3.
3. His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 11 September 1973 to 26 September 1973 (16 days).
4. The applicant was released from active duty on 15 September 1975 in pay grade E-3 and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement) on the following day.
5. Items 18(a) (Net Active Service This Period) and 18(c) (Record of Service) (Total Active Service) of his DD Form 214 shows he was credited with 3 years total active service. Item 18(e) (Total Service for Pay) shows he was credited with 3 years of total service for pay.
6. Item 27 (Remarks) shows he had 16 days of lost time from
11 to 26 September 1973.
7. The applicant was honorably discharged from the USAR on 30 August 1978.
8. As a matter of information, 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.
9. The doctrine of laches is defined by Blacks 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 states he filed a claim for $1,897.00 when he was separated on 15 September 1975. However, there is no evidence of record to substantiate his claim.
2. An arbitrary ruling in the applicant's favor, without knowing what his personnel and/or finance records would have shown, would cause prejudice to the Government. Had he applied to the ABCMR earlier an equitable decision could possibly have been made in his case. However, at this time, the doctrine of laches is invoked in his case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x_____ ____x____ ____x__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
_______ _ x_______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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