IN THE CASE OF:	  

		BOARD DATE:	    9 June 2011

		DOCKET NUMBER:  AR20100028027 


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, in effect, correction of the year he was appointed as a Reserve warrant officer (WO) in the rank of warrant officer one (WO1)/pay grade W-1 with concurrent call to active duty from 1982 to 1980 and adjustment of the effective dates of his promotions to chief warrant officer two (CW2)/pay grade 
W-2 and chief warrant officer three (CW3)/pay grade W-3.

2.  The applicant states he applied for appointment as a WO in military occupational specialty (MOS) 973A (Interrogation Technician) in 1979 while he was serving in Germany in the rank of staff sergeant (SSG)/pay grade E-6.

	a.  After the board, he and another noncommissioned officer (NCO) in the battalion were told to contact Headquarters, Department of the Army (HQDA), about their WO applications because they had been selected for appointment.

	b.  They called HQDA and spoke with the WO branch manager for their MOS.  The other NCO was told he was selected for appointment; however, the applicant was told he was not selected.

	c.  He adds that all of the other applicants had their WO applications returned; however, his was never returned to him and it could not be located.

	d.  He states, "I was later told (hearsay) that there were irregularities with that selection board which resulted in the military intelligence (MI) WO branch manager being asked to retire."  He states he was told the reason the WO branch manager was asked to retire was because he had made certain that minority applicants were appointed in place of others who had been selected.  The applicant acknowledges that he doesn't know if this is true, but it is what he was told.

	e.  He applied for appointment as a WO in MOS 973A again, was selected, and was appointed in October 1982.  At that time the applicant asked the new WO branch manager if he could locate his original WO application; however, he was unable to find it.  He states the new branch manager also mentioned there had been irregularities with the last branch manager's role in the board.

	f.  The applicant requests correction of the date of his appointment as a WO and his subsequent promotions as a WO if irregularities did, in fact, occur surrounding the board that adversely impacted his appointment in 1980.

3.  The applicant provides a copy of a letter to The Inspector General (IG), Washington, DC, dated 18 October 2010, in which he requested correction of his records and the Assistant Inspector General's response on 2 November 2010 advising the applicant to apply to the Army Board for Correction of Military Records (ABCMR).

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 ABCMR to excuse an applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant had prior honorable enlisted service in the Regular Army (RA) from 24 August 1972 through 3 June 1975.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 4 June 1975 to complete his Reserve obligation.

3.  The applicant enlisted in the Air Force National Guard of the United States and Air National Guard of North Dakota on 18 October 1975 and was awarded MOS 20470 (Intelligence Operations).  He was honorably discharged on 27 February 1977.

4.  The applicant enlisted in the RA for a period of 4 years on 24 May 1977.  He was assigned overseas to Germany on 21 October 1978 and he was promoted to SSG in MOS 96C (Intelligence Operations Specialist) effective 1 October 1979.

5.  A DA Form 61 (Application for Appointment), dated 10 May 1982, shows the applicant applied for appointment as a USAR WO in MOS 973A.

	a.  Item 31c (Have You Ever Applied and Not Been Selected for Appointment in Reserve Component (USAR/ARNG)) shows the applicant entered an "X" in the "Yes" column in response to "as a WO."

	b.  Item 31e (If Answer is "Yes" Explain Fully) shows the applicant entered, "I applied for appointment as a 973A in [September 1980] and was not selected for appointment.  Application packet and official letter explaining non-selection have not been received.  Attempts to obtain these have met with negative results."

6.  A DD Form 214 shows the applicant was honorably discharged from the RA in the rank of SSG/E-6 on 12 October 1982 based on being ordered to active duty as a Reserve WO.

7.  A Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, letter, dated 5 October 1982, and a DA Form 71 (Oath of Office – Military Personnel) show the applicant was appointed as a Reserve WO of the Army in the rank of WO1/W-1 in MOS 973A effective 13 October 1982.

8.  The applicant's Officer Record Brief shows he was appointed and promoted as a WO in the USAR and Army of the United States (AUS) as follows:

* WO1 – 13 October 1982 (USAR and AUS)
* CW2 – 13 October 1984 (AUS)
* CW2 – 13 October 1985 (USAR)
* CW3 – 1 February 1991 (AUS)

9.  A DD Form 214 shows the applicant entered active duty for this period on 13 October 1982.  He was honorably retired from active duty in the rank of CW3/W-3 on 31 August 1994 based on sufficient service for retirement and transferred to the USAR Control Group (Retired).  He completed 11 years, 10 months, and 18 days of net active service during this period and 20 years, 5 months, and 25 days of total active service.

10.  There is no evidence in the applicant's military personnel records that shows he was selected for appointment as a WO prior to 1982.  There is also no evidence the applicant was administered an oath of office accepting an appointment as a WO in the USAR or RA prior to 13 October 1982.

11.  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 contends his records should be corrected to show he was appointed as a USAR WO in the rank of WO1 in 1980 with corresponding adjustment of the effective dates of his promotions to CW2 and CW3 as a result of this correction because of improprieties surrounding the WO selection board in 1980.

2.  The evidence shows he submitted an application for appointment as a USAR WO in 1979 and he was informed by the MI WO branch manager that he was not selected for appointment.  In addition, the applicant acknowledged in his WO application on 10 May 1982 that he had applied for appointment as a WO in 1980 and he was not selected for appointment.  Thus, there is no evidence the applicant was selected for appointment as a WO prior to May 1982.

3.  The sincerity of the applicant's contention is not in dispute.  However, the fact that his initial WO application was not returned to him and that it could not be located is immaterial; he simply did not serve as a WO during that period.  In addition, the applicant acknowledges that the information he learned of regarding irregularities surrounding the 1980 WO selection board was based on hearsay.  Thus, the information the applicant provides is insufficient evidence to support correction of his records.

4.  It appears the applicant waited almost 30 years to raise his concerns to official (i.e., the IG and/or this Board) authorities.  The lapse of such a long period of time has allowed the facts as to what happened to his first application to go unresolved.  An arbitrary ruling in his favor, without knowing what actually happened to his application, would cause prejudice to the Government.  Had he applied to the IG or the ABCMR in a timely manner, an equitable decision could possibly have been made in his case.  However, since it is now nearly 30 years later, the doctrine of laches is invoked.



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 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.

ABCMR Record of Proceedings (cont)                                         AR20100028027



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ABCMR Record of Proceedings (cont)                                         AR20100028027



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