BOARD DATE: 27 October 2011
DOCKET NUMBER: AR20110005093
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 his military records to show his unit commander timely initiated procedures for him to receive payment of his enlistment bonus for enlisting in the U.S. Army Reserve (USAR) for 6 years in 1993.
2. The applicant states he was to receive an enlistment bonus when he finished his advanced individual training (AIT). He was recently looking through his old records and he realized he did not receive his bonus.
3. The applicant provides:
* a DA Form 5261-R (Selected Reserve Incentive Program - Enlistment Bonus Addendum)
* his orders to initial active duty for training and AIT
* his request to the Defense Finance and Accounting Service (DFAS) for copies of his Leave and Earning Statements (LES)
* a letter from DFAS, dated 7 March 2011
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 USAR on 8 January 1993 for a period of 6 years. His DA Form 5261-R shows:
* he was enlisting in the USAR with concurrent assignment to a unit of the Selected Reserve for a minimum of 6 years
* the unit identified for bonus entitlement was the 2053rd U.S. Army Reception Battalion
* he was entitled to an enlistment bonus of $1,500.00 for enlisting in a critical unit
* he would receive 1/2 payment of the bonus amount after receiving his high school diploma, completing initial active duty for training, and qualifying in a military occupational specialty (MOS)
* he would receive two subsequent payments of 1/4 of the bonus amount upon satisfactory completion of the second and fourth year of his enlistment term of service
* the procedures for payment of the enlistment bonus would be initiated by his unit commander
3. He was ordered to report to initial active duty for training on 19 May 1993 and for AIT on 23 July 1993. His training period was for approximately 15 weeks or completion of basic and MOS training.
4. On 9 January 2001, he was discharged from the USAR Control Group (Reinforcement).
5. He requested copies of his LES's from DFAS for the period 7 January 1993 to 6 January 2001. DFAS provided him copies of the requested LES's; however, his LES's for the following periods were not available:
* January through March 1993
* January through September 1994
*
March 1998
* March 2000
* January 2001
6. 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, 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.
7. The "Doctrine of laches" is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. 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. There is insufficient evidence and the applicant has not provided sufficient evidence to show when he completed his AIT. Without this information it is unknown when he completed the requirements for his first payment of his enlistment bonus.
2. He was required to remain assigned to the 2053rd U.S. Army Reception Battalion in the Selected Reserve for a minimum of 6 years. He was discharged from the USAR Control Group (Reinforcement) on 9 January 2001. There is no evidence showing when he was transferred from the 2053rd USA Reception Battalion in the Selective Reserve. Therefore, there is insufficient evidence to show he met the 6-year minimum requirement for his two subsequent payments of the enlistment bonus.
3. More than 18 years have elapsed in his case. An arbitrary ruling in his favor, without knowing the exact circumstances of what happened at the time and what his complete finance records would have shown, would cause prejudice to the Government. Had he applied to the ABCMR within the limits of the barring statute an equitable decision could possibly have been made in his case. However, since it is now more than 18 years after his separation, 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.
ABCMR Record of Proceedings (cont) AR20110005093
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ABCMR Record of Proceedings (cont) AR20110005093
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